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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
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INTERSTATE HOTELS COMPANY
FOSTER PLAZA TEN
680 ANDERSEN DRIVE
PITTSBURGH, PENNSYLVANIA 15220
(412) 937-0600
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<S> <C> <C>
PENNSYLVANIA 1-11731 25-1788101
(State of Incorporation) (Commission File No.) (IRS Employer
Identification No.)
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SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
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Name of each exchange
Title of each class on which registered
- ------------------------------------------ ------------------------------------------
Common Stock, $.01 par value (35,502,839 New York Stock Exchange
shares outstanding as of March 20, 1998)
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The Company (1) has filed all reports required to be filed by Section 13 or
15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and
(2) has been subject to such filing requirements for the past 90 days.
Disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is
contained in this Report.
There were 21,950,920 shares of the Company's Common Stock outstanding as
of March 20, 1998 that were held by non-affiliates. The aggregate market value
of these shares, based upon the last sale price as reported on the New York
Stock Exchange Composite Tape on March 20, 1998, was approximately $751,819,000.
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INDEX
INTERSTATE HOTELS COMPANY
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PAGE
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PART I
Items 1 & 2 Business and Properties..................................... 2
Item 3 Legal Proceedings........................................... 3
Item 4 Submission of Matters to a Vote of Security Holders......... 3
PART II
Item 5 Market for Registrant's Common Equity and Related
Stockholder Matters......................................... 4
Item 6 Selected Financial Data..................................... 4
Item 7 Management's Discussion and Analysis of Financial Condition
and Results of Operations................................... 7
Item 7A Quantitative and Qualitative Disclosures About Market
Risk........................................................ 11
Item 8 Financial Statements and Supplementary Data................. 11
Item 9 Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure.................................... 11
PART III
Item 10 Directors and Executive Officers of the Registrant.......... 12
Item 11 Executive Compensation...................................... 13
Item 12 Security Ownership of Certain Beneficial Owners and
Management.................................................. 17
Item 13 Certain Relationships and Related Transactions.............. 19
PART IV
Item 14 Exhibits, Financial Statement Schedules and Reports on Form
8-K......................................................... 21
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PART I
ITEMS 1 & 2. BUSINESS AND PROPERTIES
GENERAL
Interstate Hotels Company (the "Company") is the largest independent hotel
management company in the United States based on number of properties, number of
rooms and total revenues produced for owners. At December 31, 1997, the Company
owned, managed, leased or performed related services for 223 hotels with a total
of 45,329 rooms in the United States, Canada, the Caribbean and Russia. The
Company owned or had a controlling interest in 40 of these properties with
11,580 rooms (the "Owned Hotels"), all of which are geographically diverse,
primarily upscale or luxury properties operating under various brand names. The
Owned Hotels operate under the Embassy Suites(R), Hilton(TM), Holiday Inn(R),
Marriott(R), Radisson(TM), Sheraton(TM) and Westin(TM) trade names principally
in major metropolitan markets such as Atlanta, Boston, Chicago, Denver, Fort
Lauderdale, Houston, Los Angeles, Miami, Philadelphia, Phoenix and Washington,
D.C. In January 1998, the Company acquired one additional hotel with 348 rooms,
and in March 1998, the Company sold a 47.8% interest in three Owned Hotels for
$49.2 million.
The Company leased 89 hotels with 10,258 rooms (the "Leased Hotels") at
December 31, 1997, primarily as a result of the Company's strategic alliance
with Equity Inns, Inc., a publicly traded real estate investment trust ("Equity
Inns"). The Company has a right of first refusal, subject to certain
limitations, to lease hotels acquired or developed by Equity Inns over the next
four years.
The Company is the largest franchisee of upscale hotels in the Marriott(R)
system, owning, managing or providing services to 40 hotels totaling 13,881
rooms, bearing the Marriott(R) flag. The Company also operates in the mid-scale,
upper economy and budget segments of the lodging industry and is the largest
franchisee and independent manager in the Hampton Inn(R) system, providing
services to 63 hotels totaling 7,555 rooms, bearing the Hampton Inn(R) flag.
In June 1996, the Company completed its initial public offering of 12.4
million shares of Common Stock at $21.00 per share (the "IPO"), and in December
1996, the Company completed its second public offering of 4.0 million shares of
Common Stock at $25.00 per share.
1997 DEVELOPMENTS
During 1997, the Company acquired 11 Owned Hotels: the 250-room Syracuse
Marriott, the 358-suite Chicago Embassy Suites, the 300-room St. Louis Marriott
West, the 297-room Indian River Plantation Resort Marriott in Stuart, Florida,
the 314-room Pittsburgh Airport Marriott, the 310-room Arlington Dallas
Marriott, the 508-room Parsippany Hilton, the 253-room Gateway Hilton in Newark,
New Jersey, the 359-room Albany Marriott, the 350-room San Diego Marriott
Mission Valley and the 320-room Minneapolis Marriott Southwest. In addition, two
Owned Hotels which the Company developed for a total cost of $16.9 million, the
121-room Courtyard by Marriott in Orange, Connecticut and the 98-room Courtyard
by Marriott in Westborough, Massachusetts, were opened during 1997.
Also during 1997, the Company acquired a 25% equity interest in the
Waterford Marriott in Oklahoma City, Oklahoma, a 13% equity interest in the Don
Cesar Beach House in St. Petersburg, Florida, a 25% equity interest in the
Manhattan Beach Marriott in Manhattan Beach, California and a 10% equity
interest in the Ontario Airport Marriott in Ontario, California. In addition, a
minority partnership interest in The Charles Hotel at Harvard Square in
Cambridge, Massachusetts was acquired.
In connection with these acquisitions, the Company amended its credit
facility in May 1997 by converting certain borrowings outstanding under the
revolving credit facility to a $135 million term loan and increasing the
revolving credit facility from $200 million to $350 million. In addition, the
Company's permitted non-recourse and subordinated debt capacity was increased
from $250 million to $290 million.
During 1997, the Company entered into 31 long-term operating leases with
Equity Inns totaling 3,688 rooms.
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On December 2, 1997, the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") with Patriot American Hospitality, Inc.
("Patriot") and Wyndham International, Inc. (formerly Patriot American
Hospitality Operating Company) ("Wyndham International") pursuant to which the
Company would be merged with and into Patriot, with Patriot being the surviving
corporation (the "Merger"). Pursuant to the Merger Agreement, each share of
Company Common Stock is to be converted, at the election of the holder thereof,
into the right to receive $37.50 in cash or 1.341 paired shares of Patriot
common stock and Wyndham International common stock (subject to proration to
ensure that 40% of the shares of the Company Common Stock are converted into the
right to receive cash and 60% of the shares of Company Common Stock are
converted into the right to receive paired shares). The Merger is contingent
upon, among other customary conditions, the approval by the shareholders of the
Company and Patriot/ Wyndham International, and is expected to be consummated in
the second quarter of 1998.
ITEM 3. LEGAL PROCEEDINGS
In the ordinary course of its business, the Company is named as a defendant
in legal proceedings resulting from incidents at its hotels. The Company
maintains liability insurance, requires hotel owners to maintain adequate
insurance coverage and is generally entitled to indemnity from third-party hotel
owners for lawsuits and damages against it in its capacity as a hotel manager.
Giving effect thereto, the Company believes that the legal proceedings to which
it is subject will not have a material effect on the Company's financial
condition or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the Company's shareholders during
the fourth quarter of 1997.
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock has been listed on the New York Stock Exchange
("NYSE") since June 20, 1996 under the symbol "IHC." Prior to that date, the
Common Stock was not publicly traded. The following table sets forth, for the
periods indicated, the high and low sales prices per share of Common Stock as
reported on the NYSE Composite Tape.
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STOCK PRICE
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PERIOD HIGH LOW
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1996:
Second Quarter.......................................... $23.38 $21.00
Third Quarter........................................... 27.75 22.13
Fourth Quarter.......................................... 29.63 24.13
1997:
First Quarter........................................... 32.50 26.63
Second Quarter.......................................... 30.13 23.63
Third Quarter........................................... 33.38 25.75
Fourth Quarter.......................................... 37.25 27.75
1998:
First Quarter (through March 20, 1998).................. 36.50 33.38
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The Company has not paid any cash dividends on the Common Stock and does
not anticipate that it will do so in the foreseeable future. Further, the terms
of the Company's credit facility prohibit the payment of dividends on the Common
Stock.
ITEM 6. SELECTED FINANCIAL DATA
The following table sets forth selected historical financial data of the
Company as of and for each of the years ended December 31, 1993, 1994, 1995,
1996 and 1997, selected pro forma financial data of the Company for the years
ended December 31, 1996 and 1997, and certain other data. The selected financial
data of the Company as of December 31, 1996 and 1997 and for each of the years
ended December 31, 1995, 1996 and 1997 have been derived from audited financial
statements of the Company included elsewhere herein. The selected financial data
of the Company as of December 31, 1993, 1994 and 1995 and for each of the years
ended December 31, 1993 and 1994 have been derived from audited financial
statements of the Company which are not required to be included herein. The
selected pro forma financial data for the years ended December 31, 1996 and 1997
are presented to include the effects of the Company's IPO, the acquisitions of
Owned Hotels in connection with and since the IPO through December 31, 1997, the
addition of the Leased Hotels, the Company's second public offering in December
1996, the Company's debt restructuring in May 1997 and certain other
adjustments, as if all of the transactions had occurred on January 1, 1996. The
pro forma financial data is not necessarily indicative of what the results of
operations of the Company would have been for the periods indicated, nor does it
purport to represent the Company's future results of operations. The selected
financial data should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the financial
statements and notes thereto included elsewhere in this Report.
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SELECTED FINANCIAL AND OTHER DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AND HOTEL DATA)
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YEAR ENDED DECEMBER 31,
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PRO FORMA PRO FORMA
1993 1994 1995 1996 1997 1996 1997
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STATEMENT OF INCOME DATA:
Lodging revenues:
Rooms....................... $ -- $ -- $ -- $ 89,930 $ 440,938 $ 474,813 $ 514,713
Food and beverage........... -- -- -- 42,502 137,067 159,878 164,136
Other departmental.......... -- -- -- 8,685 38,074 41,489 44,874
Management and related fees
(1)......................... 25,564 36,726 45,018 49,268 45,633 41,554 42,760
-------- -------- ---------- ---------- ----------- ----------- -----------
Total revenues............ 25,564 36,726 45,018 190,385 661,712 717,734 766,483
Lodging expenses:
Rooms....................... -- -- -- 20,900 101,860 111,476 119,687
Food and beverage........... -- -- -- 31,033 100,585 119,138 120,781
Other departmental.......... -- -- -- 3,936 16,602 18,536 20,027
Property costs.............. -- -- -- 41,707 175,202 202,686 206,094
General and administrative.... 5,057 8,302 9,811 10,912 15,322 12,775 14,920
Payroll and related
benefits.................... 10,321 12,420 15,469 17,529 21,265 18,894 21,265
Non-cash compensation (2)..... -- -- -- 11,896 -- -- --
Lease expense................. -- -- -- 3,477 73,283 74,813 83,535
Depreciation and
amortization................ 3,282 3,659 4,201 14,862 40,561 47,640 45,821
-------- -------- ---------- ---------- ----------- ----------- -----------
Operating income.......... 6,904 12,345 15,537 34,133 117,032 111,776 134,353
Other income (expense):
Interest, net............... 12 30 99 (12,421) (44,255) (53,273) (48,262)
Other, net.................. (6) 14 203 (270) (2,447) (6,338) (7,470)
-------- -------- ---------- ---------- ----------- ----------- -----------
Income before income tax
expense................. 6,910 12,389 15,839 21,442 70,330 52,165 78,621
Income tax expense (3)........ -- -- -- 15,325 26,744 19,823 29,876
-------- -------- ---------- ---------- ----------- ----------- -----------
Income before
extraordinary items..... 6,910 12,389 15,839 6,117 43,586 32,342 48,745
Extraordinary items (4)....... -- -- -- 7,733 -- -- --
-------- -------- ---------- ---------- ----------- ----------- -----------
Net income (loss)......... $ 6,910 $ 12,389 $ 15,839 $ (1,616) $ 43,586 $ 32,342 $ 48,745
======== ======== ========== ========== =========== =========== ===========
Net income per common share:
Basic....................... $ 1.23 $ 0.91 $ 1.38
Diluted..................... $ 1.22 $ 0.90 $ 1.36
Common shares outstanding:
Basic....................... 35,320,091 35,386,763 35,386,763
Diluted..................... 35,716,265 35,793,557 35,793,557
BALANCE SHEET DATA (AT YEAR
END):
Cash and cash equivalents..... $ 4,520 $ 6,702 $ 14,035 $ 32,323 $ 31,988
Total assets.................. 24,436 30,741 61,401 883,761 1,373,463
Current portion of long-term
debt........................ 600 673 363 11,767 53,001
Long-term debt, excluding
current portion............. 1,209 3,217 35,907 396,044 747,123
Total shareholders' equity.... 16,627 18,858 9,256 409,298 456,375
OTHER FINANCIAL DATA:
EBITDA (5).................... $ 10,180 $ 16,018 $ 19,930 $ 49,228 $ 159,110 $ 159,649 $ 181,691
Net cash provided by operating
activities.................. 10,389 15,318 25,328 41,271 106,175
Net cash used in investing
activities.................. (3,088) (3,852) (22,858) (449,414) (460,380)
Net cash (used in) provided by
financing activities........ (7,242) (9,285) 4,863 426,431 353,870
TOTAL PORTFOLIO HOTEL DATA:
(6)
Total portfolio hotel
revenues.................... $760,766 $858,986 $1,056,279 $1,326,581 $ 1,600,958
Number of hotels (7).......... 82 136 150 212 223
Number of rooms (7)........... 24,202 31,502 35,044 43,178 45,329
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PRO FORMA PRO FORMA
1993 1994 1995 1996 1997 1996 1997
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OWNED HOTEL OPERATING DATA:
(8)
Average occupancy rate (9).... 72.8% 72.6% 74.0% 73.1%
ADR (10)...................... $ 96.20 $ 109.56 $ 101.52 $ 109.71
REVPAR (11)................... $ 70.00 $ 79.59 $ 75.08 $ 80.17
LEASED HOTEL OPERATING DATA:
(12)
Average occupancy rate........ 58.4% 71.1% 72.3% 71.7%
ADR........................... $ 54.93 $ 67.93 $ 63.05 $ 66.70
REVPAR........................ $ 32.08 $ 48.27 $ 45.57 $ 47.81
COMPARABLE OWNED HOTEL
OPERATING DATA: (13)
Average occupancy rate........ 73.3% 73.4%
ADR........................... $ 92.88 $ 101.89
REVPAR........................ $ 68.12 $ 74.79
</TABLE>
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(1) Pro forma management and related fees are adjusted to reflect consolidation
of the Owned Hotels and the resultant pro forma elimination of management
and related fees actually derived from the Owned Hotels in 1996 and 1997,
respectively.
(2) Represents a non-recurring expense relating to the issuance of 785,533
shares of Common Stock to certain executives and key employees of the
Company in consideration for the cancellation of stock options issued by
one of the Company's predecessors, Interstate Hotels Corporation ("IHC"),
in 1995.
(3) Until immediately prior to the consummation of the IPO, the Company and its
predecessors were organized as S corporations, partnerships and limited
liability companies and, accordingly, were not subject to federal and
certain state income taxes. The Company recorded income tax expense of
$4,881 to establish deferred income taxes as of the date of the Company's
change of status from a pass-through entity for tax purposes to a C
corporation. The pro forma statement of income data has been computed as if
the Company had been subject to federal and state income taxes, based on
the applicable statutory tax rates then in effect.
(4) Represents an extraordinary loss resulting from the early extinguishment of
indebtedness, net of a tax benefit of $3,997.
(5) EBITDA represents earnings before interest, income taxes, depreciation and
amortization, minority interests and extraordinary items. Management
believes that EBITDA is a useful measure of operating performance because
it is industry practice to evaluate hotel properties based on operating
income before interest, depreciation and amortization, which is generally
equivalent to EBITDA, and EBITDA is unaffected by the debt and equity
structure of the property owner. EBITDA does not represent cash flow from
operations as defined by generally accepted accounting principles ("GAAP"),
is not necessarily indicative of cash available to fund all cash flow needs
and should not be considered as an alternative to net income under GAAP for
purposes of evaluating the Company's results of operations.
(6) Represents all hotels, including the Owned and Leased Hotels, for which the
Company provides management or related services.
(7) As of the end of the years presented.
(8) Represents information for 40 Owned Hotels purchased on varying dates
during 1996 and 1997 (unadjusted for seasonality, market repositioning and
hotels under renovation).
(9) Represents total rooms occupied by hotel guests on a paid basis divided by
total available rooms. Total available rooms represents the number of rooms
available for rent multiplied by the number of days in the reported period.
(10) Represents total room revenues divided by the total number of rooms
occupied by hotel guests on a paid basis.
(11) Represents total room revenues divided by total available rooms.
(12) Represents information for 89 Leased Hotels entered into on varying dates
during 1996 and 1997 (unadjusted for seasonality, market repositioning and
hotels under renovation).
(13) Represents information for 21 Owned Hotels owned since October 1, 1996.
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ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
At December 31, 1997, the Company owned or had a controlling interest in 40
hotels with a total of 11,580 rooms, compared to 27 hotels with a total of 7,736
rooms at December 31, 1996. In addition, the Company had long-term operating
leases for 89 hotels with a total of 10,258 rooms at December 31, 1997, compared
to long-term operating leases for 57 hotels with a total of 6,484 rooms at
December 31, 1996.
PRO FORMA YEAR ENDED DECEMBER 31, 1997 COMPARED TO PRO FORMA YEAR ENDED DECEMBER
31, 1996
Pro forma total revenues increased by $48.8 million, or 6.8%, from $717.7
million in 1996 to $766.5 million in 1997. The most significant portion of this
increase related to lodging revenues, which consists of rooms, food and beverage
and other departmental revenues. Pro forma lodging revenues increased by $47.5
million, or 7.0%, from $676.2 million in 1996 to $723.7 million in 1997. This
increase was due to the overall improvement in the operating performance of the
Owned and Leased Hotels and an overall improvement in economic conditions in
certain geographic regions.
The pro forma average daily room rate ("ADR") for the Owned Hotels
increased by 8.1%, from $101.52 during 1996 to $109.71 during 1997, and the pro
forma average occupancy rate decreased slightly to 73.1%. This resulted in an
increase in pro forma room revenue per available room ("REVPAR") of 6.8% to
$80.17 during 1997. Pro forma management and related fees increased by $1.2
million, or 2.9%, from $41.6 million in 1996 to $42.8 million in 1997 primarily
due to the performance improvement of the Company's portfolio of managed hotels.
Many of the management agreements for these hotels provide for incentive
management fees.
Pro forma lodging expenses, which consists of rooms, food and beverage,
property costs and other departmental expenses, increased by $14.8 million, or
3.3%, from $451.8 million in 1996 to $466.6 million in 1997. The pro forma
operating margin of the Owned and Leased Hotels increased from 33.2% during 1996
to 35.5% during 1997. This increase was attributed to the increase in pro forma
revenues and the overall improvement in operating performance and operating
efficiencies of the Owned and Leased Hotels.
Lease expense represents base rent and participating rent that is based on
a percentage of rooms and food and beverage revenues from the Leased Hotels. Pro
forma lease expense increased by $8.7 million, or 11.7%, from $74.8 million in
1996 to $83.5 million in 1997. This increase was due to higher Leased Hotels'
room revenues. The pro forma ADR for the Leased Hotels increased by 5.8%, from
$63.05 during 1996 to $66.70 during 1997, and the pro forma average occupancy
rate decreased slightly to 71.7%. This resulted in an increase in pro forma
REVPAR of 4.9% to $47.81 during 1997.
Pro forma operating income increased by $22.6 million, or 20.2%, from
$111.8 million in 1996 to $134.4 million in 1997. Accordingly, the pro forma
operating margin increased from 15.6% during 1996 to 17.5% during 1997.
Pro forma net interest expense decreased by $5.0 million, or 9.4%, from
$53.3 million in 1996 to $48.3 million in 1997. This decrease was due to lower
outstanding debt balances resulting primarily from escalating scheduled
principal payments, in accordance with the Company's credit facility, on a pro
forma basis.
Pro forma income tax expense for the periods presented was computed as if
the Company had been subject to federal and state income taxes, based on an
effective tax rate of 38%.
As a result of the changes noted above, pro forma net income increased by
$16.4 million, or 50.7%, from $32.3 million in 1996 to $48.7 million in 1997.
The pro forma net income margin increased from 4.5% during 1996 to 6.4% during
1997.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
Total revenues increased by $471.3 million, or 247.6%, from $190.4 million
in 1996 to $661.7 million in 1997. The most significant portion of this increase
related to lodging revenues which increased by $475.0 mil-
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lion, or 336.6%, from $141.1 million in 1996 to $616.1 million in 1997. This
increase was due to the operations of the Owned and Leased Hotels since their
respective acquisition or inception dates. The ADR for the Owned Hotels
increased by 16.2%, from $94.29 during 1996 to $109.56 during 1997, and the
average occupancy rate decreased slightly to 72.6%. This resulted in an increase
in REVPAR of 13.1% to $79.59 during 1997. Management and related fees decreased
by $3.7 million, or 7.4%, from $49.3 million in 1996 to $45.6 million in 1997
primarily due to the Company's acquisitions of previously managed hotels which
resulted in the elimination of third-party management and related fees.
Lodging expenses increased by $296.6 million, or 304.0%, from $97.6 million
in 1996 to $394.2 million in 1997. This increase was due to the operations of
the Owned and Leased Hotels since their respective acquisition or inception
dates. The operating margin of the Owned and Leased Hotels increased from 30.9%
during 1996 to 36.0% during 1997. This increase was attributed to the increase
in revenues and the overall improvement in operating performance and operating
efficiencies of the Owned and Leased Hotels.
General and administrative expenses are associated with the management of
hotels and consist primarily of centralized management expenses such as
operations management, sales and marketing, finance and other hotel support
services, as well as general corporate expenses. General and administrative
expenses increased by $4.4 million, or 40.4%, from $10.9 million in 1996 to
$15.3 million in 1997. This increase was primarily due to incremental expenses
associated with the growth of the Company's business and additional
non-recurring costs associated with the acquisitions of the Owned Hotels and
property repositionings, as well as additional costs associated with managing
and administering a publicly held company. General and administrative expenses
as a percentage of revenues decreased to 2.3% during 1997 compared to 5.7%
during 1996 as a result of the operations of the Owned and Leased Hotels since
their respective acquisition or inception dates.
Payroll and related benefits expenses increased by $3.8 million, or 21.3%,
from $17.5 million in 1996 to $21.3 million in 1997. This increase was related
to the addition of corporate management and staff personnel as the Company's
portfolio of hotels for which it provides management and other services grew,
primarily resulting from the addition of the Leased Hotels owned by Equity Inns.
Payroll and related benefits expenses as a percentage of revenues decreased to
3.2% during 1997 compared to 9.2% during 1996 as a result of the operations of
the Owned and Leased Hotels since their respective acquisition or inception
dates.
Non-cash compensation of $11.9 million in 1996 resulted from the issuance
of 785,533 shares of Common Stock to certain executives and key employees of the
Company in consideration for the cancellation of stock options issued by IHC in
1995.
The Company had lease expense of $73.3 million in 1997 compared to $3.5
million in 1996 primarily due to the addition of the Leased Hotels owned by
Equity Inns. The ADR for the Leased Hotels increased by 23.7%, from $54.93
during 1996 to $67.93 during 1997, and the average occupancy rate increased to
71.1%. This resulted in an increase in REVPAR of 50.5% to $48.27 during 1997.
Depreciation and amortization increased by $25.7 million, or 172.9%, from
$14.9 million in 1996 to $40.6 million in 1997 due to incremental depreciation
related to the acquisitions of the Owned Hotels, the amortization of deferred
financing fees and the amortization of goodwill and the cost of lease contracts
associated with the Company's acquisition of the management and leasing
businesses affiliated with Equity Inns in 1996.
Operating income (exclusive of non-cash compensation) increased by $71.0
million, or 154.3%, from $46.0 million in 1996 to $117.0 million in 1997. The
operating margin decreased from 24.2% during 1996 to 17.7% during 1997. This
increase in operating income and decrease in the operating margin reflects the
inclusion of the operating results of the Owned and Leased Hotels, which were
not reflected in the Company's results prior to their respective acquisition or
inception dates.
Net interest expense increased by $31.9 million, or 256.3%, from $12.4
million in 1996 to $44.3 million in 1997 primarily due to additional borrowings
related to the acquisitions of the Owned Hotels.
Other expense of $2.4 million in 1997 consisted primarily of minority
interests.
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Income tax expense in both 1996 and 1997 was computed based on an effective
tax rate of 38%. Income tax expense in 1996 included deferred tax expense of
$4.9 million, which was recorded in June 1996 when the Company changed its tax
status from a pass-through entity for tax purposes to a C corporation.
An extraordinary loss of $7.7 million, net of a tax benefit of $4.0
million, in 1996 resulted from the early extinguishment of certain indebtedness
and was related to the payment of prepayment penalties and loan commitment fees
and the write-off of deferred financing fees.
As a result of the changes noted above, net income of $43.6 million was
recorded in 1997 compared to a net loss of $1.6 million in 1996. The net income
margin was 6.6% in 1997.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
Total revenues increased by $145.4 million, or 322.9%, from $45.0 million
in 1995 to $190.4 million in 1996. The most significant portion of this increase
related to lodging revenues which increased by $141.1 million. This increase was
due to the operations of the Owned and Leased Hotels since their respective
acquisition or inception dates. Management fees increased by $2.3 million, or
8.4%, from $27.0 million in 1995 to $29.3 million in 1996 due to the addition of
90 new management contracts and increased revenues associated with the
performance improvement of existing managed hotels. The increase in management
fees was partially offset by the loss of 28 management contracts primarily due
to the divestiture of hotels by third-party owners. Other management-related
fees increased by $2.0 million, or 10.9%, from $18.0 million in 1995 to $20.0
million in 1996 due to incremental revenues associated with the net addition of
new hotels, many of which utilize the Company's other contractual services.
The Company had lodging expenses of $97.6 million in 1996 due to the
operations of the Owned and Leased Hotels since their respective acquisition or
inception dates. The operating margin of the Owned and Leased Hotels was 30.9%
during 1996.
General and administrative expenses increased by $1.1 million, or 11.2%,
from $9.8 million in 1995 to $10.9 million in 1996. This increase was primarily
due to incremental expenses associated with the growth of the Company's hotel
management business and the acquisitions of the Owned Hotels, as well as
additional costs associated with managing and administering a publicly held
company. General and administrative expenses as a percentage of revenues
decreased to 5.7% during 1996 compared to 21.8% during 1995 as a result of the
operations of the Owned and Leased Hotels since their respective acquisition or
inception dates.
Payroll and related benefits expenses increased by $2.0 million, or 13.3%,
from $15.5 million in 1995 to $17.5 million in 1996. This increase was related
to the addition of corporate management and staff personnel as the Company's
portfolio of hotels for which it provides management and other services grew.
Payroll and related benefits expenses as a percentage of revenues decreased to
9.2% during 1996 compared to 34.4% during 1995 as a result of the operations of
the Owned and Leased Hotels since their respective acquisition or inception
dates.
Non-cash compensation of $11.9 million in 1996 resulted from the issuance
of 785,533 shares of Common Stock to certain executives and key employees of the
Company in consideration for the cancellation of stock options issued by IHC in
1995.
The Company had lease expense of $3.5 million in 1996 due to the addition
of the Leased Hotels owned by Equity Inns.
Depreciation and amortization increased by $10.7 million, or 253.8%, from
$4.2 million in 1995 to $14.9 million in 1996 due to incremental depreciation
related to the acquisitions of the Owned Hotels, the amortization of deferred
financing fees and the amortization of goodwill and the cost of lease contracts
associated with the Company's acquisition of the management and leasing
businesses affiliated with Equity Inns in 1996.
Operating income (exclusive of non-cash compensation) increased by $30.5
million, or 196.3%, from $15.5 million in 1995 to $46.0 million in 1996. The
operating margin decreased from 34.5% during 1995 to 24.2% during 1996. This
increase in operating income and decrease in the operating margin reflects the
inclusion of the operating results of the Owned and Leased Hotels, which were
not reflected in the Company's results prior to their respective acquisition or
inception dates.
9
<PAGE> 11
The Company had $0.1 million of net interest income in 1995 compared to
$12.4 million of net interest expense in 1996. This increase in interest expense
was primarily due to additional borrowings related to the acquisitions of the
Owned Hotels.
Other expense of $0.3 million in 1996 consisted primarily of minority
interests.
Income tax expense in 1996 included deferred tax expense of $4.9 million,
which was recorded in June 1996 when the Company changed its tax status from a
pass-through entity for tax purposes to a C corporation.
An extraordinary loss of $7.7 million, net of a tax benefit of $4.0
million, in 1996 resulted from the early extinguishment of certain indebtedness
and was related to the payment of prepayment penalties and loan commitment fees
and the write-off of deferred financing fees.
As a result of the changes noted above, a net loss of $1.6 million was
recorded in 1996 compared to net income of $15.8 million in 1995.
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash and cash equivalent assets were $32.0 million at
December 31, 1997 compared to $32.3 million at December 31, 1996. At December
31, 1997, current liabilities exceeded current assets by $42.9 million partially
as a result of the Company's acquisition of one Owned Hotel which was financed
with a $31.0 million short-term non-recourse loan maturing on December 31, 1998.
The Company's principal sources of liquidity during 1997 were cash from
operations and borrowings under its credit facility. Net cash provided by
operations was $106.2 million in 1997 compared to $41.3 million in 1996. The
Company used cash of $460.4 million in investing activities in 1997, which
principally related to the acquisitions of Owned Hotels and investments in hotel
real estate in the amount of $393.4 million and capital expenditures of $63.5
million. The Company's capital expenditure budget relating to existing
operations for 1998 is $50.5 million. Net cash provided by financing activities
in the amount of $353.9 million in 1997 was primarily used to finance hotel
acquisitions. The principal source of this cash was $540.5 million from proceeds
from long-term debt, offset by long-term debt repayments of $206.2 million.
At December 31, 1997, the Company's total indebtedness was $800.1 million,
comprised of $415.6 million of term loans, $222.0 million of borrowings under
its revolving credit facility, $29.3 million of mortgage indebtedness
encumbering six Owned Hotels in which the Company owns a controlling interest,
$132.6 million of loans related to the acquisitions of seven Owned Hotels, and
$0.6 million of other debt. In connection with the Company's acquisition of an
Owned Hotel in January 1998, the Company entered into a subordinated bridge debt
facility that provides for up to $75 million of additional borrowings. The
Company borrowed $14 million under this facility to finance this acquisition.
The Company utilizes various interest rate hedge contracts to limit its
interest rate exposure on indebtedness. Future changes in interest rates
applicable to outstanding borrowings are therefore not expected to have a
material impact on the Company's results of operations. Management of the
Company believes that, with respect to its current operations, the Company's
cash on hand and funds from operations will be sufficient to cover its
reasonably foreseeable working capital, ongoing capital expenditure and debt
service requirements.
The Company's credit facility contains certain restrictive covenants,
including several financial ratios and restrictions on the payment of dividends,
among other things. At December 31, 1997, the Company made expenditures relating
to certain leases and employee loans which exceeded amounts permitted by such
covenants. The lenders have waived the non-compliance with such covenants
resulting from such expenditures, and the Company currently anticipates
satisfying all such covenants in the future.
Since its IPO, the Company has pursued a growth-oriented strategy
involving, among other things, the acquisition of interests in additional hotel
properties and hotel management companies, as well as the acquisition of
additional management contracts (which may from time to time require capital
expenditures by the Company). The Company is also pursuing selective development
projects, particularly in the limited-service segment. At December 31, 1997, the
Company had two limited-service hotels under construction with total projected
development costs of $23.0 million. These properties consist of a Courtyard by
Marriott hotel in St. Louis, Missouri and a Residence Inn by Marriott hotel in
Pittsburgh, Pennsylvania. The total cost incurred
10
<PAGE> 12
through December 31, 1997 on these projects was $7.2 million. In addition, the
Company opened two Courtyard by Marriott hotels in Orange, Connecticut and
Westborough, Massachusetts, which it had developed for a total cost of $9.5
million and $7.4 million, respectively. Management believes that the capital
resources available to the Company will be sufficient to pursue the Company's
acquisition strategy and to fund its other presently foreseeable capital
requirements.
The Company believes that, absent a presently unforeseen change, additional
acquisition and development opportunities will continue to exist for the
foreseeable future, and depending upon conditions in the capital and other
financial markets as well as other factors, the Company may increase its
borrowing capacity and consider the issuance of equity or debt securities, the
proceeds of which could be used to finance acquisitions and development, to
repay or refinance outstanding indebtedness or for other general corporate
purposes.
FORWARD-LOOKING STATEMENTS
This Report contains certain forward-looking statements and information
relating to the Company that are based on the beliefs of the Company's
management, as well as assumptions made by and information currently available
to the Company's management. When used herein, words such as "anticipate,"
"believe," "estimate," "expect," "intend," and similar expressions, as they
relate to the Company or the Company's management, identify forward-looking
statements. Such statements reflect the current views of the Company with
respect to future events and are subject to certain risks, uncertainties and
assumptions, relating to the operations and results of operations of the
Company, the Company's rapid expansion, the ownership and leasing of real
estate, competition from other hospitality companies and changes in economic
cycles, as well as the other factors described herein. Should one or more of
these risks or uncertainties materialize, or should underlying assumptions prove
incorrect, actual results or outcomes may vary materially from those described
herein as anticipated, estimated, expected or intended.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The quantitative and qualitative disclosures required by this Item 7A and
by Rule 305 of SEC Regulation S-K are not material to the Company at this time.
Interest rate exposure on indebtedness is discussed in "Management's Discussion
and Analysis of Financial Condition and Results of Operations--Liquidity and
Capital Resources."
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required by this item is set forth in the Company's
Consolidated Financial Statements and Supplementary Data contained in this
Report and is incorporated herein by reference. Specific financial statements
and supplementary data can be found at the pages listed in the following index:
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Accountants........................... F-1
Consolidated Balance Sheets as of December 31, 1996 and
1997...................................................... F-2
Consolidated Statements of Operations for the years ended
December 31, 1995, 1996 and 1997.......................... F-3
Consolidated Statements of Shareholders' Equity for the
years ended December 31, 1995, 1996 and 1997.............. F-4
Consolidated Statements of Cash Flows for the years ended
December 31, 1995, 1996 and 1997.......................... F-5
Notes to Consolidated Financial Statements.................. F-6
</TABLE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
11
<PAGE> 13
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The directors and executive officers of the Company are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------------------------------------------------------
<S> <C> <C>
Milton Fine 71 Chairman of the Board
W. Thomas Parrington, Jr. 53 President, Chief Executive Officer and Director
J. William Richardson 50 Executive Vice President, Finance and Administration and
Chief Financial Officer
Robert L. Froman 51 Executive Vice President, Development
Thomas D. Reese 52 Executive Vice President, Operations
Marvin I. Droz 43 Senior Vice President and General Counsel
David J. Fine 34 Director
R. Michael McCullough 59 Director
Thomas J. Saylak 37 Director
Steven J. Smith 57 Director
</TABLE>
Milton Fine co-founded the Company in 1961 and served as the Company's
Chief Executive Officer through March 1996. Mr. Fine is a life trustee of the
Carnegie Institute and Chairman of the Board of the Carnegie Museum of Art. He
is also a member of the Board of Trustees of the University of Pittsburgh and a
member of the Board of Directors of the Andy Warhol Museum in Pittsburgh,
Pennsylvania.
W. Thomas Parrington, Jr. has been with the Company since 1981, serving as
Chief Executive Officer since April 1996, President and Director since 1994 and
as Chief Financial Officer prior thereto.
J. William Richardson has served as the Company's Executive Vice President,
Finance and Administration and Chief Financial Officer since 1994. Mr.
Richardson previously served as Controller and Treasurer of the Company since
1988.
Robert L. Froman has been with the Company since 1984, serving as Executive
Vice President, Development since 1986.
Thomas D. Reese has served as Executive Vice President, Operations since
joining the Company in October 1996. Prior to joining the Company, Mr. Reese was
Vice President of Marriott Hotels, Resorts and Suites from August 1992 to
October 1996 and general manager of the New York Marriott Marquis Hotel prior
thereto.
Marvin I. Droz has served as Senior Vice President and General Counsel
since joining the Company in 1990.
David J. Fine has been a Director of the Company since 1991. Mr. Fine is an
attorney specializing in the areas of real estate finance and property
acquisition, development and disposition. From 1991 to 1996, Mr. Fine was an
attorney with Eckert, Seamans, Cherin & Mellott, and from 1990 to 1991 he was an
attorney with Gaston and Snow. David J. Fine is the son of Milton Fine.
R. Michael McCullough has been a Director of the Company since 1991. Mr.
McCullough is Senior Chairman (retired) of Booz, Allen & Hamilton, Inc., an
international management and technology consulting firm.
Thomas J. Saylak has been a Director of the Company since December 1995.
Mr. Saylak is a Senior Managing Director of The Blackstone Group. Prior to
joining Blackstone in 1993, Mr. Saylak was a principal in Trammell Crow
Ventures, the real estate investment, banking and investment management unit of
Trammell Crow Company, from 1987 to 1993.
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<PAGE> 14
Steven J. Smith has been a Director of the Company since 1991 and has been
a management consultant since 1989.
COMMITTEES OF THE BOARD
The Board of Directors of the Company (the "Board") has established two
directorate committees--a compensation committee (the "Compensation Committee")
and an audit review committee (the "Audit Review Committee").
Compensation Committee. The Compensation Committee reviews executive
salaries, administers the bonus, incentive compensation and stock option plans
of the Company and approves the salaries and other benefits of the executive
officers of the Company. In addition, the Compensation Committee consults with
the Company's management regarding pension and other benefit plans and the
compensation policies and practices of the Company. The Compensation Committee
was formed in June 1996 in connection with the IPO and is composed of R. Michael
McCullough (Chairman) and Steven J. Smith, who are not employed by the Company
or any of its affiliates ("Non-Employee Directors") and are not eligible to
receive options or other rights under any employee stock or other benefit plan
(other than plans in which only directors may participate). Before June 1996,
decisions regarding the compensation of officers were made by the Board.
Audit Review Committee. The Audit Review Committee reviews the professional
services provided by the Company's independent accountants and the independence
of such accountants from the management of the Company. The Audit Review
Committee also reviews the scope of the audit by the Company's independent
accountants, the annual financial statements of the Company, the Company's
system of internal accounting controls and such other matters with respect to
the accounting, auditing and financial reporting practices and procedures of the
Company as it finds appropriate or as are brought to its attention, and meets
from time to time with members of the Company's internal audit staff. The Audit
Review Committee was formed in June 1996 in connection with the IPO and is
required to consist solely of Non-Employee Directors. The current members of the
Audit Review Committee are Thomas J. Saylak and Steven J. Smith (Chairman).
DIRECTOR COMPENSATION
Directors who are Non-Employee Directors are paid an annual retainer of
$25,000 plus $1,000 for each Board meeting or working session attended. In
addition, members of each directorate committee are paid $1,000 ($1,250 in the
case of the committee chairman) for each committee meeting attended on days on
which the Board does not also meet. Non-Employee Directors are also entitled
under the Company's Stock Option Plan for Non-Employee Directors to receive, at
the time such person becomes a director, an option to purchase 5,000 shares of
Common Stock at an exercise price per share equal to the market value of a share
of Common Stock on such date and, annually, an option to purchase 5,000 shares
of Common Stock at an exercise price equal to the market value of a share of
Common Stock on the date of the annual meeting of shareholders.
ITEM 11. EXECUTIVE COMPENSATION
EXECUTIVE COMPENSATION
The following table sets forth certain information regarding the
compensation paid to Milton Fine, who served as Chief Executive Officer through
March 1996 but is presently Chairman of the Board, and each of the four other
most highly compensated executive officers of the Company (including W. Thomas
Parrington, Jr., the current Chief Executive Officer) in 1997 (collectively, the
"Named Executive Officers").
13
<PAGE> 15
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
----------------------
ANNUAL COMPENSATION SECURITIES
------------------- UNDERLYING LTIP ALL OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY BONUS OPTIONS PAYOUTS COMPENSATION
- ------------------------------ ---- -------- -------- ---------- ------- ------------
<S> <C> <C> <C> <C> <C> <C>
Milton Fine (1)............... 1997 $505,769 $ -- -- $65,750(2) $1,499,401(3)
Chairman of the Board 1996 167,583 -- 185,000(4) 18,850(2) 50,000(5)
1995 159,896 -- -- -- 50,000(5)
W. Thomas Parrington, Jr...... 1997 370,845 430,000 -- 84,053(7) 2,544,470(8)
President and Chief 1996 340,205 404,680 240,000(4) 81,241(9) 126,292(10)
Executive Officer (6) 1995 313,781 378,000 227,906(11) 37,400(12) 18,000(5)
J. William Richardson......... 1997 258,287 300,000 -- 79,300(13) 1,714,051(14)
Executive Vice President, 1996 236,960 281,173 123,750(4) 77,254(15) 71,000(16)
Finance and Administration 1995 216,608 259,929 136,744(11) 46,800(12) 15,000(5)
and Chief Financial Officer
Robert L. Froman.............. 1997 256,399 225,000 -- 32,137(2) --
Executive Vice President, 1996 235,444 267,343 87,500(4) 30,222(2) 16,666(17)
Development 1995 225,163 181,666 136,744(11) -- 16,666(17)
Thomas D. Reese............... 1997 244,038 225,000 -- 30,550(2) 137,314(19)
Executive Vice President, 1996 42,481 -- 75,000(4) 5,522(2) --
Operations (18) 1995 -- -- -- -- --
</TABLE>
- ---------
(1) Mr. Fine was Chief Executive Officer during the period from January 1, 1995
through March 31, 1996.
(2) Consists entirely of compensation under the Company's Executive Retirement
Plan (the "ERP").
(3) Consists of $50,000 of compensation for services as a director of the
Company's subsidiary, Northridge Insurance Company ("Northridge"), and a
severance payment in the amount of $1,449,401 provided for under Mr. Fine's
change-in-control agreement.
(4) Consists of shares underlying options granted under the Company's 1996
Equity Incentive Plan (the "Equity Incentive Plan"), with exercise prices
ranging from $21.00 per share to $26.75 per share.
(5) Consists entirely of compensation for services as a director of Northridge.
(6) Mr. Parrington was President and Chief Operating Officer during the period
from January 1, 1995 through March 31, 1996.
(7) Consists of $46,589 of compensation under the ERP and $37,464 of
compensation under the Company's Supplemental Deferred Compensation Plan
(the "SDCP").
(8) Consists of $18,000 of compensation for services as a director of
Northridge, amortization of loan forgiveness (principal and interest) in
the amount of $334,185 and a severance payment in the amount of $2,192,285
provided for under Mr. Parrington's change-in-control agreement.
(9) Consists of $43,841 of compensation under the ERP and $37,400 of
compensation under the SDCP.
(10) Consists of $18,000 of compensation for services as a director of
Northridge and amortization of loan forgiveness in the amount of $108,292.
(11) Gives effect to the ratio applied to the exchange of shares of common stock
of IHC for Common Stock of the Company in connection with the formation of
the Company. All of these options were canceled prior to and in
anticipation of the IPO, with resulting compensation as follows: Mr.
Fine--$0; Mr. Parrington--$2,574,165; Mr. Richardson--$1,443,054; Mr.
Froman--$1,596,787; Mr. Reese--$0.
(12) Consists entirely of compensation under the SDCP.
(13) Consists of $32,500 of compensation under the ERP and $46,800 of
compensation under the SDCP.
14
<PAGE> 16
(14) Consists of $15,000 of compensation for services as a director of
Northridge, amortization of loan forgiveness (principal and interest) in
the amount of $170,800 and a severance payment in the amount of $1,528,251
provided for under Mr. Richardson's change-in-control agreement.
(15) Consists of $30,454 of compensation under the ERP and $46,800 of
compensation under the SDCP.
(16) Consists of $15,000 of compensation for services as a director of
Northridge and amortization of loan forgiveness in the amount of $56,000.
(17) Consists entirely of amortization of loan forgiveness.
(18) Mr. Reese joined the Company in October 1996.
(19) Consists of $108,542 of restricted stock compensation under the Equity
Incentive Plan and $28,772 of costs reimbursed for relocation.
STOCK OPTION VALUES
The following table sets forth information regarding the values of the
options held by the Named Executive Officers at December 31, 1997.
OPTION VALUES AT DECEMBER 31, 1997
<TABLE>
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
OPTIONS AT IN-THE-MONEY OPTIONS
DECEMBER 31, 1997 AT DECEMBER 31, 1997
--------------------------- ---------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
Milton Fine............................... 61,667 123,333 $ 820,524 $1,641,038
W. Thomas Parrington, Jr.................. 80,000 160,000 1,071,668 2,143,332
J. William Richardson..................... 41,250 82,500 540,078 1,080,156
Robert L. Froman.......................... 29,166 58,334 376,815 753,654
Thomas D. Reese........................... 25,000 50,000 207,813 415,625
</TABLE>
Outstanding Options. Pursuant to the Equity Incentive Plan, the Company has
outstanding stock options to purchase an aggregate of 1,571,264 shares of Common
Stock at exercise prices ranging from $21.00 to $27.25 per share. Each of the
options has a ten-year term and becomes exercisable as to one-third of the
shares covered thereby on each of the first three anniversaries of the date of
grant so long as the holder thereof remains a full-time employee of the Company,
except that the options become immediately exercisable in the event of the
holder's death, disability or termination of employment by the Company for any
reason other than cause (as defined) or in the event that any person or group
(other than Mr. Fine and individuals affiliated with him who beneficially own
shares of Company Common Stock (the "Fine Family Shareholders")) becomes the
beneficial owner of more than 30% of the outstanding shares of capital stock of
the Company entitled generally to vote in the election of directors and, within
12 months after such acquisition, there is a change in a majority of the members
of the Board. Unexercised options terminate 30 calendar days after the holder's
termination of employment by the Company, except that such period is 180 days in
the event of disability and 360 days in the event of death.
COMPENSATION PLANS AND ARRANGEMENTS
Management Bonus Plan. The Company has established a Management Bonus Plan
under which all key management employees, including the Named Executive
Officers, are eligible to receive bonuses based upon achievement of specified
targets and goals for the Company and the individual employee. Bonus awards may
not exceed 50% to 120% of the executive's annual base salary and 20% of each
executive's bonus award may, at the discretion of the Compensation Committee, be
paid in the form of shares of Common Stock, which will be subject to certain
restrictions and forfeiture provisions. The Management Bonus Plan is
administered by the Compensation Committee.
15
<PAGE> 17
Executive Loans. In 1996, the Company loaned $2.0 million and $1.0 million
to Messrs. Parrington and Richardson, respectively (the "Executive Loans"). The
Executive Loans are fully recourse to the borrowers thereunder, mature on June
30, 2006 and bear interest at the adjusted federal rate. If the executive's
employment is terminated by the Company for cause or by the executive for any
reason other than death, disability or circumstances that would entitle the
executive to benefits under his change-in-control agreement (described below),
then the executive's loan would become due and payable in three equal annual
installments commencing with the first anniversary of the date of such
termination. If the executive's employment is terminated for any other reason,
the loan plus accrued interest would be forgiven. If the executive remains
employed by the Company, one-tenth of the principal amount of such executive's
loan plus the interest for that year will be forgiven on June 30 of each year
until extinguished. See "--Certain Relationships and Related
Transactions--Transactions with Officers and Directors" for a discussion of
certain other loans by the Company.
Deferred Compensation Agreements. In connection with the termination of
certain prior benefit arrangements, each of Messrs. Parrington and Richardson
entered into a deferred compensation agreement with the Company under the
Company's SDCP. Pursuant to the deferred compensation agreements, $561,000 and
$702,000 has been deposited into a grantor trust established by the Company for
the benefit of, respectively, Messrs. Parrington and Richardson. Such amounts
plus accumulated earnings will be paid out in ten semi-annual payments beginning
at the earlier of the date of approved retirement from the Company or the
attainment of age 60, provided that the beneficiary thereof performs consulting
services to the Company and does not engage in any competitive activity.
Executive Retirement Plan. Each of the General Managers of the Company's
hotels who are employees of the Company and other employees of the Company
holding job classifications of Vice President or above, including the Named
Executive Officers (collectively, the "Participants"), is eligible to
participate in the Company's ERP. The ERP is intended to be a non-qualified and
unfunded plan maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees.
Actual participation in the ERP is determined by the ERP's administrative
committee, which is appointed by the Board.
The Company annually contributes 7-8% of the Participants' base salary to
the ERP and may make discretionary contributions of up to an additional 5% of
the Participants' base salary. These discretionary contributions are based on
the Company's net increase in earnings per share in a given year. In addition,
Participants are eligible to designate a portion (specified annually by the
Board or the Compensation Committee) of their cash bonus to be contributed to
the ERP.
The funds contributed by the Company or Participants are held in a grantor
trust established by the Company. Unless the administrative committee determines
that the amounts contributed to the ERP on behalf of a Participant ("Plan
Benefits") are payable earlier, in general a Participant receives his ERP Plan
Benefits one year after his retirement or termination of employment.
Stock Purchase Plan. Each eligible full-time employee of the Company,
including the Named Executive Officers, may participate in the Company's
employee stock purchase plan (the "Stock Purchase Plan"). Under the Stock
Purchase Plan, participating employees may elect to authorize the Company to
withhold a maximum of 8% of the participating employee's salary, which amounts
will be held in the participating employee's account and used to purchase Common
Stock on a semi-annual basis at a price equal to a designated percentage from
85% to 100% of the average closing sale price for Common Stock as reported on
the Composite Transactions Tape of the New York Stock Exchange, on either the
offer date or the purchase date, whichever price is lower.
Equity Incentive Plan. The Company's Equity Incentive Plan is designed to
attract and retain qualified officers and other key employees of the Company.
The Equity Incentive Plan authorizes the grant of options to purchase shares of
Common Stock, stock appreciation rights, restricted shares, deferred shares,
performance shares and performance units. The Compensation Committee administers
the Equity Incentive Plan and determines to whom awards under the plan are to be
granted and the terms and conditions of such awards, including the number of
shares and the period of exercisability thereof. Officers, including officers
who are
16
<PAGE> 18
members of the Board, and other key employees of and consultants to the Company
and its subsidiaries may be selected by the Compensation Committee to receive
benefits under the Equity Incentive Plan.
EMPLOYMENT AND CHANGE-IN-CONTROL AGREEMENTS
Each of the Named Executive Officers is a party to an employment agreement
with the Company. Pursuant to the employment agreements, in the event that the
Named Executive Officer party thereto is terminated by the Company without cause
(as defined), the Named Executive Officer is entitled to the greater of (i) the
Named Executive Officer's salary and bonus for the prior fiscal year or (ii) the
monthly payments which the Named Executive Officer is entitled to under the
executive's employment agreement for the remainder of the term of the agreement,
plus the continuation of health and other welfare benefits for the greater of
one year or the remainder of the term of the agreement. Each of the employment
agreements with the Named Executive Officers has a term that ends on April 30,
1999, but will automatically be renewed for successive one-year terms until
either party gives notice to the other of his or its intention to terminate the
agreement. In addition, each of the Named Executive Officers is a party to a
change-in-control agreement that provides for the payment of such severance
benefits and the provision of such health and other benefits if the Named
Executive Officer's employment is terminated by the Company, or by the
executive, following a change in control (as defined), except that the severance
benefits payable thereunder are based upon three times the highest salary and
bonus that the executive received during any of the three years preceding the
year in which the change in control occurred and are reduced dollar-for-dollar
for salary and bonus payments made by the Company during any period of
continuation of employment following the change in control. In addition, the
amounts payable under the change-in-control agreements are increased to
compensate the Named Executive Officer for any excise tax payable by the Company
pursuant to Section 280G of the Internal Revenue Code of 1986, as amended. The
Named Executive Officers are not obligated under the employment agreements or
the change-in-control agreements to mitigate damages by seeking alternative
employment; however, the Company's obligations to provide health and other
welfare benefits thereunder terminates if the Named Executive Officer obtains
other full-time employment within three years of such termination. Each Named
Executive Officer's employment agreement will terminate without further action
immediately prior to the payment of any severance benefits under the Named
Executive Officer's change-in-control agreement. The employment agreements and
the change-in-control agreements include provisions prohibiting the Named
Executive Officers from engaging in any competitive activity (as defined) for
two years after termination of employment and providing for the payment of legal
fees and expenses incurred in enforcing or defending such agreements. The Merger
Agreement provides that, prior to the effective time of the Merger, the
change-in-control and employment agreements will be amended to reduce the term
of the non-competition covenants applicable to the Named Executive Officers
following the Merger to a period of 60 or 90 days to one year, depending on,
among other things, the executive's willingness to provide consulting services
to the Comapny for not less than 60 days following the termination of his
employment.
For tax planning purposes, the Company made advances to certain executives
in 1997 of the severance amounts that would be due to them under their
change-in-control agreements upon consummation of the Merger. These executives
have agreed to repay the net after-tax amounts (including tax benefits to the
executives) of such payments to the Company if the Merger does not occur.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee was formed in June 1996 and currently is
composed of R. Michael McCullough (Chairman) and Steven J. Smith. Prior thereto,
decisions regarding the compensation of officers were made by the Board.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the beneficial
ownership of Common Stock as of February 9, 1998 by (i) each person known by the
Company to own beneficially more than 5% of the Common Stock, (ii) each director
and Named Executive Officer of the Company, and (iii) all directors and
executive officers of the Company as a group. Unless indicated otherwise, the
address for each of the persons
17
<PAGE> 19
named in the table is Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220. For purposes of the table, a person or group of persons is
deemed to have "beneficial ownership" of any shares as of a given date which
such person has the right to acquire within 60 days after such date.
<TABLE>
<CAPTION>
NUMBER OF PERCENTAGE OF
SHARES OWNED SHARES OWNED
------------ -------------
<S> <C> <C>
Milton Fine (1)............................................. 6,207,230 17.5%
Fine Entities (2)........................................... 12,771,530 36.0
David J. Fine (3)........................................... 6,571,800 18.5
Blackstone Group (4)........................................ 2,528,571 7.1
W. Thomas Parrington, Jr. (5)............................... 303,660 *
J. William Richardson (6)................................... 170,403 *
Robert L. Froman............................................ 174,072 *
Thomas D. Reese (7)......................................... 10,000 *
R. Michael McCullough (8)................................... 10,000 *
Thomas J. Saylak............................................ -- --
Steven J. Smith............................................. 4,300 *
Jennison Associates Capital Corporation (9)................. 2,711,900 7.6
The Prudential Insurance Company of America (10)............ 2,715,215 7.7
All directors and executive officers as a group (10 persons)
(7)....................................................... 13,551,919 38.5
</TABLE>
- ---------
* Less than 1%.
(1) Includes 5,000 shares owned by Milton Fine's wife, 2,500 shares owned by
Milton Fine's wife in trust for her children and 6,199,730 of the
12,771,530 shares beneficially owned by the Fine Entities as to which
Milton Fine is trustee. Milton Fine disclaims beneficial ownership of all
of such shares.
(2) The "Fine Entities" are comprised of six trusts: Milton Fine is the trustee
of two of the trusts and David J. Fine is the trustee of four of the
trusts.
(3) David J. Fine may be deemed to beneficially own 6,571,800 of the 12,771,530
shares beneficially owned by the Fine Entities as to which David J. Fine is
trustee. David J. Fine disclaims beneficial ownership of such shares.
(4) As reported in a Schedule 13D filed with the SEC on July 3, 1996. The
Blackstone Group's address is 345 Park Avenue, New York, New York 10154.
(5) Includes 3,000 shares owned by Mr. Parrington's daughters. Mr. Parrington
disclaims beneficial ownership of such shares.
(6) Includes 500 shares owned by Mr. Richardson's daughters. Mr. Richardson
disclaims beneficial ownership of such shares.
(7) Includes 6,667 shares that are subject to certain risks of forfeiture under
the Equity Incentive Plan.
(8) All of the shares shown in the table to be beneficially owned by Mr.
McCullough are owned by Mr. McCullough's wife. Mr. McCullough disclaims
beneficial ownership of such shares.
(9) As reported in a Schedule 13G filed with the SEC on February 12, 1998. The
address of Jennison Associates Capital Corporation is 466 Lexington Avenue,
New York, New York 10017.
(10) As reported in a Schedule 13G filed with the SEC on February 9, 1998. The
address of The Prudential Insurance Company of America is 751 Broad Street,
Newark, New Jersey 07102-3777.
18
<PAGE> 20
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Transactions with Fine Family Shareholders. During 1997, the Company earned
revenues in the aggregate amount of $3.9 million for management services
provided to 11 hotels in which the Fine Family Shareholders had an ownership
interest. Accounts receivable of $0.3 million was due from these hotels at
December 31, 1997.
In October 1997, the Company entered into a note receivable with Mr. Fine
that permits up to $1 million of borrowings. The note receivable bears interest
at 6.3%. Semi-annual interest-only payments are due until it matures in December
2002, at which time all unpaid interest and principal is due. At December 31,
1997, there was approximately $0.4 million outstanding on the note receivable.
Certain of the Fine Family Shareholders owned minority interests in 11
hotels at certain times during 1997 that were managed or leased but not owned by
the Company during the entire year. Except for one management agreement pursuant
to which the Company waived its management fee for a period ending no later than
November 30, 1998, the Company believes that the terms under which these hotels
are managed or leased are at least as favorable to the Company as those it could
have obtained from unaffiliated persons. The Fine Family Shareholders have
granted to the Company a right of first offer and a right of first refusal in
connection with any proposed transfer of their interests (subject to certain
permitted transfers) in these hotels in consideration of the Company's agreeing
to continue to provide at no cost to the Fine Family Shareholders certain
accounting and administrative services of the type which the Company is
currently providing to the Fine Family Shareholders in connection therewith.
Transactions with Officers and Directors. The Company has made loans from
time to time to its senior executives, including each of the Named Executive
Officers other than Milton Fine. The maximum amount of such loans to any such
executive was $2,000,000 during 1997. Except for the loans to Messrs. Parrington
and Richardson, such loans are payable upon demand and, in general, do not bear
interest until such demand is made. See "--Compensation Plans and
Arrangements--Executive Loans" for a description of loans from the Company to
Messrs. Parrington and Richardson. The loans made to Messrs. Parrington and
Richardson are forgiven over time provided certain conditions are satisfied.
On December 31, 1997, the Company made advances to certain officers under
their change-in-control agreements. See "--Employment and Change-in-Control
Agreements" for a description of these advances from the Company.
In March 1997, the Company acquired a 50% equity interest in a joint
venture (the "JV") that owned a full-service upscale hotel. The total purchase
price, including closing costs, was approximately $27.8 million. Prior to the
acquisition by the Company, the Fine Family Shareholders beneficially owned a
0.25% general partnership interest and a 24.75% limited partnership interest in
the JV that owned the hotel.
In May 1997, the Company acquired substantially all of the equity interests
in a general partnership (the "GP") that owned a full-service upscale hotel. The
total purchase price, including estimated capital expenditures for anticipated
renovations and closing costs, was approximately $34.1 million. Prior to the
acquisition by the Company, the Fine Family Shareholders beneficially owned a
23.0% general partnership interest, and Messrs. Parrington and Froman together
beneficially owned a 1.5% general partnership interest in the entity that owned
the hotel. Giving effect to the acquisition, the Fine Family Shareholders
beneficially own a 2.20% limited partnership interest in the GP.
In August 1997, the Company acquired substantially all of the equity
interests in a limited partnership (the "LP") that owned three full-service
upscale hotels. The total purchase price, including estimated capital
expenditures for anticipated renovations and closing costs, was approximately
$98.8 million. Prior to the acquisition by the Company, Mr. Fine beneficially
owned a 1.1% general partnership interest and a 17% limited partnership
interest, and Messrs. Parrington and Froman together beneficially owned a 1.2%
limited partnership interest, in the entity that owned the three hotels. Giving
effect to the acquisition, Messrs. Fine, Parrington and Froman together
beneficially own a 0.62% limited partnership interest in the LP.
19
<PAGE> 21
SECTION 16(A) BENEFICIAL OWNERSHIP COMPLIANCE
Based solely on a review of copies of reports furnished to the Company and
written representations signed by all directors and executive officers that no
other reports were required with respect to their beneficial ownership of Common
Stock during 1997, the Company believes that the directors and executive
officers and all beneficial owners of more than 10% of the Common Stock
outstanding complied with all applicable filing requirements under Section 16(a)
of the Securities Exchange Act of 1934, as amended, with respect to their
beneficial ownership of Common Stock during 1997 except that a Form 5 for Mr.
McCullough was filed six business days late.
20
<PAGE> 22
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this Report
1. Financial Statements
The list of financial statements required by this item is set forth
in Item 8, "Consolidated Financial Statements and Supplementary Data,"
and is incorporated herein by reference.
2. Financial Statement Schedules
All financial statement schedules are omitted as they are either
not applicable or the required information is included in the
consolidated financial statements or the notes thereto.
3. Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
2.1 Agreement and Plan of Merger, dated as of December 2, 1997,
among the Company, Patriot American Hospitality, Inc.
("Patriot") and Wyndham International, Inc. (formerly
Patriot American Hospitality Operating Company) ("Wyndham")
(previously filed as Exhibit 2.1 to Patriot's and Wyndham's
Registration Statement on Form S-4, as amended (Registration
No. 333-44203), and incorporated herein by reference)
3.1 Amended and Restated Articles of Incorporation of the
Company(1)
3.2 Amended and Restated Bylaws of the Company(1)
4.1 Specimen Common Stock Certificate(2)
4.2(a) Credit Agreement, dated as of June 25, 1996, among
Interstate Hotels Corporation, Credit Lyonnais and the other
parties signatory thereto(1)
4.2(b) First Amendment to Credit Agreement, dated as of October 21,
1996, among Interstate Hotels Corporation, Credit Lyonnais
and the other parties signatory thereto(2)
4.2(c) Amended and Restated Credit Agreement, dated as of May 28,
1997, among Interstate Hotels Corporation, Credit Lyonnais
and other parties signatory thereto
10.1 Agreement of Purchase and Sale, dated as of March 29, 1996,
among the Sellers named therein and IHC Member
Corporation(3)
10.2 Contribution Agreement, dated as of March 29, 1996, among
Interstate Hotels Corporation and the other persons
signatory thereto(3)
10.3 Stockholders Agreement, dated as of June 25, 1996, among the
Company, Blackstone Real Estate Advisors L.P. and the
shareholders named therein(1)
10.4 Registration Rights Agreement, dated as of June 25, 1996,
among the Company and the shareholders named therein(1)
10.5 Master Agreement, dated as of April 1, 1996, among Host
Funding, Inc., Crossroads Hospitality Tenant Company, L.L.C.
and Crossroads Hospitality Company, L.L.C.(3)
10.6 Interstate Hotels Company Executive Retirement Plan(3)
10.7 Interstate Hotels Company 1996 Equity Incentive Plan(3)
10.8 Interstate Hotels Company Employee Stock Purchase Plan, as
amended through January 1, 1997 (previously filed as Exhibit
99.1 to the Company's Registration Statement on Form S-8
(Registration No. 333-19307), and incorporated herein by
reference)
10.9 Interstate Hotels Company Management Bonus Plan(3)
10.10 Interstate Hotels Company Stock Option Plan for Non-Employee
Directors(3)
10.11(a) Employment Agreement between the Company and Milton Fine(3)
10.11(b) Employment Agreement between the Company and W. Thomas
Parrington, Jr.(3)
10.11(c) Employment Agreement between the Company and J. William
Richardson(3)
10.11(d) Employment Agreement between the Company and Robert L.
Froman(3)
10.11(e) Employment Agreement between the Company and Marvin I.
Droz(3)
10.11(f) Employment Agreement between the Company and Thomas D.
Reese(2)
</TABLE>
21
<PAGE> 23
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
10.12 Form of Severance Agreement between the Company and each of
Milton Fine, W. Thomas Parrington, Jr., J. William
Richardson, Robert L. Froman and Marvin I. Droz(3)
10.13(a) Form of Indemnification Agreement between the Company and
each of its directors(3)
10.13(b) Amendment to Indemnification Agreement, dated as of December
2, 1997, between the Company and Milton Fine
10.14(a) Interstate Hotels Company Supplemental Deferred Compensation
Plan(3)
10.14(b) Deferred Compensation Agreement between the Company and W.
Thomas Parrington, Jr.(3)
10.14(c) Deferred Compensation Agreement between the Company and J.
William Richardson(3)
10.15(a) Contribution Agreement, dated as of October 4, 1996, as
amended, among Trust Leasing, Inc., Trust Management, Inc.,
Phillip H. McNeill, Sr., Crossroads/Memphis Company, L.L.C.
and Crossroads/Memphis Partnership, L.P.(2)
10.15(b) Master Agreement, dated as of November 4, 1996, as amended,
among Equity Inns Partnership, L.P., Interstate Hotels
Corporation, Equity Inns, Inc., Crossroads/Memphis
Partnership, L.P. and Crossroads Future Company, L.L.C.(2)
10.16(a) Contribution Agreement, dated as of December 19, 1996, among
Casa Marina Ltd., Casa Marina Realty Corporation, Interstone
Partners I, L.P. and Casa Marina Realty Partnership, L.P.(4)
10.16(b) Contribution Agreement and Agreement to Assign Partnership
Interests and Enter into First Amended and Restated Limited
Partnership Agreement, dated as of December 19, 1996, among
IHC Reach Corporation, Reach Resort Investment Corporation,
Interstone Partners I, L.P. and The Key West Reach Limited
Partnership(4)
10.17(a) Plan and Agreement of Merger, dated as of August 28, 1997,
by and between IHP Holdings Partnership, L.P. and Interstate
Hotels Partners, L.P.(5)
10.17(b) Form of Purchase and Sale Agreement and Assignment of
Limited Partnership Interest, dated as of August 28, 1997,
by and between IHP Investment Company, L.L.C. and eight (8)
separate limited partners(5)
10.17(c) Purchase and Sale Agreement and Assignment of Limited
Partnership Interest, dated as of August 28, 1997, by and
between IHP Investment Company, L.L.C. and SB/Interstate
General Partnership(5)
21.1 List of Subsidiaries of the Company
23.1 Consent of Coopers & Lybrand L.L.P.
24.1 Powers of Attorney executed by the Company, David J. Fine,
Milton Fine, R. Michael McCullough, W. Thomas Parrington,
Jr., J. William Richardson, Thomas J. Saylak and Steven J.
Smith
27.1 Financial Data Schedule
</TABLE>
- ---------
(1) Filed previously as an exhibit to the Company's Quarterly Report on Form
10-Q for the quarterly period ended June 30, 1996 and incorporated herein by
reference.
(2) Filed previously as an exhibit to the Company's Registration Statement on
Form S-1, as amended (Registration. No. 333-15507), and incorporated herein
by reference.
(3) Filed previously as an exhibit to the Company's Registration Statement on
Form S-1, as amended (Registration. No. 333-3958), and incorporated herein
by reference.
(4) Filed previously as an exhibit to the Company's Current Report on Form 8-K
dated December 27, 1996 and incorporated herein by reference.
(5) Filed previously as an exhibit to the Company's Current Report on Form 8-K
dated August 28, 1997 and incorporated herein by reference.
(b) Reports on Form 8-K
None.
22
<PAGE> 24
SIGNATURES
Pursuant to the requirements of Section 13 of the Securities Exchange Act
of 1934, the Company has duly caused this Report to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Pittsburgh, in the
Commonwealth of Pennsylvania, on March 30, 1998.
INTERSTATE HOTELS COMPANY
By: /s/ J. WILLIAM RICHARDSON
-------------------------------------
J. William Richardson
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* President, Chief Executive Officer March 30, 1998
- --------------------------------------------- and Director
W. Thomas Parrington, Jr. (principal executive officer)
/s/ J. WILLIAM RICHARDSON Executive Vice President and March 30, 1998
- --------------------------------------------- Chief Financial Officer
J. William Richardson (principal financial and accounting
officer)
* Director March 30, 1998
- ---------------------------------------------
Milton Fine
* Director March 30, 1998
- ---------------------------------------------
David J. Fine
* Director March 30, 1998
- ---------------------------------------------
R. Michael McCullough
* Director March 30, 1998
- ---------------------------------------------
Thomas J. Saylak
* Director March 30, 1998
- ---------------------------------------------
Steven J. Smith
</TABLE>
The undersigned, by signing his name hereto, does sign and execute this
Annual Report on Form 10-K pursuant to the powers of attorney executed by the
above-named officers and directors and filed herewith.
By: /s/ J. WILLIAM RICHARDSON
-------------------------------------
J. William Richardson
Attorney-in-Fact
23
<PAGE> 25
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders and Board of Directors of
Interstate Hotels Company:
We have audited the accompanying consolidated balance sheets of Interstate
Hotels Company (the Company) as of December 31, 1996 and 1997, and the related
consolidated statements of operations, shareholders' equity and cash flows for
each of the three years in the period ended December 31, 1997. These
consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of the
Company as of December 31, 1996 and 1997, and the consolidated results of its
operations, shareholders' equity and cash flows for each of the three years in
the period ended December 31, 1997, in conformity with generally accepted
accounting principles.
/S/ COOPERS & LYBRAND L.L.P.
600 Grant Street
Pittsburgh, Pennsylvania
February 11, 1998, except
for Note 21, as to which the
date is March 1, 1998,
and except for Note 3, as
to which the date is
March 30, 1998
F-1
<PAGE> 26
INTERSTATE HOTELS COMPANY
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
1996 1997
-------- ----------
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 32,323 $ 31,988
Accounts receivable, net.................................. 21,556 40,827
Stock subscription receivable, net........................ 14,286 --
Deferred income taxes..................................... 1,649 2,104
Prepaid expenses and other assets......................... 11,961 13,837
-------- ----------
Total current assets.............................. 81,775 88,756
Restricted cash............................................. 15,995 3,823
Property and equipment, net................................. 709,151 1,153,911
Investments in hotel real estate............................ 5,605 41,297
Officers and employees notes receivable..................... 4,643 12,157
Intangible and other assets................................. 66,592 73,519
-------- ----------
Total assets................................. $883,761 $1,373,463
======== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable--trade................................... 12,152 16,015
Accounts payable--health trust............................ 2,440 90
Accrued payroll and related benefits...................... 15,072 21,861
Other accrued liabilities................................. 23,926 40,730
Current portion of long-term debt......................... 11,767 53,001
-------- ----------
Total current liabilities......................... 65,357 131,697
Long-term debt.............................................. 396,044 747,123
Deferred income taxes....................................... 4,081 19,376
Other liabilities........................................... 1,213 1,715
-------- ----------
Total liabilities................................. 466,695 899,911
-------- ----------
Minority interests.......................................... 7,768 17,177
Commitments and contingencies............................... -- --
-------- ----------
Shareholders' equity:
Preferred stock, $.01 par value; 25,000 shares authorized;
no shares outstanding.................................. -- --
Common stock, $.01 par value; 75,000 shares authorized;
35,425 shares issued and outstanding as of December 31,
1997................................................... 352 354
Paid-in capital........................................... 407,784 411,808
Retained earnings......................................... 1,432 45,018
Unearned compensation..................................... (270) (805)
-------- ----------
Total shareholders' equity........................ 409,298 456,375
-------- ----------
Total liabilities and shareholders' equity... $883,761 $1,373,463
======== ==========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-2
<PAGE> 27
INTERSTATE HOTELS COMPANY
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1995 1996 1997
------- -------- --------
<S> <C> <C> <C>
Lodging revenues:
Rooms..................................................... $ -- $ 89,930 $440,938
Food and beverage......................................... -- 42,502 137,067
Other departmental........................................ -- 8,685 38,074
Management and related fees................................. 45,018 49,268 45,633
------- -------- --------
45,018 190,385 661,712
------- -------- --------
Lodging expenses:
Rooms..................................................... -- 20,900 101,860
Food and beverage......................................... -- 31,033 100,585
Other departmental........................................ -- 3,936 16,602
Property costs............................................ -- 41,707 175,202
General and administrative.................................. 9,811 10,912 15,322
Payroll and related benefits................................ 15,469 17,529 21,265
Non-cash compensation....................................... -- 11,896 --
Lease expense............................................... -- 3,477 73,283
Depreciation and amortization............................... 4,201 14,862 40,561
------- -------- --------
29,481 156,252 544,680
------- -------- --------
Operating income..................................... 15,537 34,133 117,032
Other income (expense):
Interest, net............................................. 99 (12,421) (44,255)
Other, net................................................ 203 (270) (2,447)
------- -------- --------
Income before income tax expense..................... 15,839 21,442 70,330
Income tax expense.......................................... -- 15,325 26,744
------- -------- --------
Income before extraordinary items.................... 15,839 6,117 43,586
Extraordinary loss from early extinguishment of debt, net of
tax benefit of $3,997..................................... -- 7,733 --
------- -------- --------
Net income (loss).................................... $15,839 $ (1,616) $ 43,586
======= ======== ========
Basic earnings per common share (Note 18)................... $ 1.23
========
Diluted earnings per common share (Note 18)................. $ 1.22
========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-3
<PAGE> 28
INTERSTATE HOTELS COMPANY
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(IN THOUSANDS)
---------
<TABLE>
<CAPTION>
RETAINED RECEIVABLE
COMMON PAID-IN (DEFICIT) UNEARNED PARTNERS' FROM
STOCK CAPITAL EARNINGS COMPENSATION CAPITAL SHAREHOLDERS TOTAL
----- ------- -------- ------------ ------- ------------ -----
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1994............... $ 42 $ 17,880 $ (739) $ -- $ 3,878 $(2,203) $ 18,858
Effect of reorganization................. (42) 4,520 -- -- (4,478) -- --
Assumption of liability by principal
shareholder............................ -- 1,220 -- -- -- -- 1,220
Common stock of new entities and capital
contributions.......................... 3 -- -- -- 600 -- 603
Stock options granted.................... -- 3,263 -- (3,263) -- -- --
Assumption of shareholders' liability.... -- -- (12,995) -- -- -- (12,995)
Net decrease in receivable from
shareholders........................... -- -- -- -- -- 573 573
Distributions paid....................... -- -- (14,842) -- -- -- (14,842)
Net income............................... -- -- 15,839 -- -- -- 15,839
---- -------- -------- ------- ------- ------- --------
Balance at December 31, 1995............... 3 26,883 (12,737) (3,263) -- (1,630) 9,256
Cancellation of stock options issued in
1995................................... -- (3,263) -- 3,263 -- -- --
Issuance of stock........................ 8 12,154 -- (379) -- -- 11,783
Unearned compensation recognized......... -- -- -- 109 -- -- 109
Net decrease in receivable from
shareholders........................... -- -- -- -- -- 1,630 1,630
Dividends and capital distributions...... -- (30,000) (8,423) -- -- -- (38,423)
Contribution of IHC's net assets for
Common Stock........................... 125 (24,333) 24,208 -- -- -- --
Issuance of Common Stock, net............ 186 357,287 -- -- -- -- 357,473
Stock subscription receivable, net....... 6 14,280 -- -- -- -- 14,286
Issuance of Common Stock for
acquisitions........................... 24 54,776 -- -- -- -- 54,800
Net loss................................. -- -- (1,616) -- -- -- (1,616)
---- -------- -------- ------- ------- ------- --------
Balance at December 31, 1996............... 352 407,784 1,432 (270) -- -- 409,298
Issuance of stock, net of cancellation... 1 566 -- (567) -- -- --
Unearned compensation recognized......... -- -- -- 32 -- -- 32
Issuance of Common Stock................. 1 3,129 -- -- -- -- 3,130
Options exercised........................ -- 329 -- -- -- -- 329
Net income............................... -- -- 43,586 -- -- -- 43,586
---- -------- -------- ------- ------- ------- --------
Balance at December 31, 1997............... $354 $411,808 $ 45,018 $ (805) $ -- $ -- $456,375
==== ======== ======== ======= ======= ======= ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-4
<PAGE> 29
INTERSTATE HOTELS COMPANY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
---------
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------
1995 1996 1997
-------- --------- ---------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss)...................................... $ 15,839 $ (1,616) $ 43,586
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Depreciation and amortization........................ 4,201 14,862 40,561
Minority interests' share of equity (loss) income
from investments in hotel real estate............. (10) 503 3,964
Non-cash compensation................................ -- 11,896 --
Deferred income taxes................................ -- 6,671 14,840
Write-off of deferred financing fees................. -- 6,169 --
Other................................................ (299) (231) (750)
Cash (used) provided by assets and liabilities:
Accounts receivable, net............................. (2,377) 1,280 (19,271)
Prepaid expenses and other assets.................... (257) (11,289) (1,861)
Accounts payable..................................... 4,775 2,953 1,513
Accrued liabilities.................................. 3,456 10,073 23,593
-------- --------- ---------
Net cash provided by operating activities......... 25,328 41,271 106,175
-------- --------- ---------
Cash flows from investing activities:
Change in restricted cash.............................. (811) (13,899) (48,177)
Acquisitions of hotels, net of cash received........... -- (417,601) (358,291)
Purchase of property and equipment, net................ (438) (16,253) (63,542)
Restricted funds used to purchase property and
equipment............................................ -- 10,383 60,349
Investments in hotel real estate....................... (13,038) (5,605) (35,143)
Change in notes receivable, net........................ (7,686) (3,424) (7,514)
Other.................................................. (885) (3,015) (8,062)
-------- --------- ---------
Net cash used in investing activities............. (22,858) (449,414) (460,380)
-------- --------- ---------
Cash flows from financing activities:
Proceeds from long-term debt........................... 35,000 360,100 540,450
Repayment of long-term debt............................ (15,265) (247,939) (206,223)
Financing costs paid, net.............................. (2,088) (14,997) (3,547)
Minority interests, net................................ 882 6,896 5,445
Proceeds from issuance of Common Stock, net............ -- 357,473 17,745
Capital contributions.................................. 603 -- --
Repayment of funds advanced to shareholders, net....... 573 1,630 --
Repayment of notes payable to shareholders............. -- (30,000) --
Dividends and capital distributions paid............... (14,842) (6,732) --
-------- --------- ---------
Net cash provided by financing activities......... 4,863 426,431 353,870
-------- --------- ---------
Net change in cash and cash equivalents.................. 7,333 18,288 (335)
Cash and cash equivalents at beginning of period......... 6,702 14,035 32,323
-------- --------- ---------
Cash and cash equivalents at end of period............... $ 14,035 $ 32,323 $ 31,988
======== ========= =========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-5
<PAGE> 30
INTERSTATE HOTELS COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
1. ORGANIZATION AND BASIS OF PRESENTATION:
Organization:
Interstate Hotels Company (the Company) was formed in April 1996 in
anticipation of an initial public offering of the Company's Common Stock in June
1996 (the IPO, see Note 4). As of December 31, 1997, the Company owned 23 hotels
and had a controlling interest in 17 other hotels (collectively, the Owned
Hotels). The Company has also entered into 79 long-term operating leases (the
Leased Hotels) in connection with and since the acquisition of the management
and leasing businesses affiliated with Equity Inns, Inc., a publicly traded real
estate investment trust (Equity Inns REIT), in November 1996.
The consolidated financial statements of the Company consist of the
historical results of Interstate Hotels Corporation and Affiliates (IHC), the
Company's predecessors, and the operations of the Owned Hotels from the
respective dates of their acquisitions. The working capital and operating
results of the Leased Hotels are also included in the Company's consolidated
financial statements because the operating performance associated with such
hotels is guaranteed by the Company. Prior to the IPO, the consolidated
financial statements reflected only the historical operations of the
predecessors.
The Company provides management and other related services principally to
owned, managed and leased hotels through its wholly owned subsidiaries. The
Company provides these services to hotels located in 35 states, the District of
Columbia, Canada, the Caribbean and Russia, with the largest concentration of
hotels in the states of Florida and California. These hotels are operated under
a number of franchise agreements, with the largest franchisors being Marriott
International, Inc. and Promus Hotels, Inc.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Principles of Consolidation:
The consolidated financial statements include the accounts of the Company
and entities more than 50% owned. All significant intercompany transactions and
balances have been eliminated in consolidation. Minority interests represent the
proportionate share of the equity that is owned by third parties in entities
controlled by the Company. The net income or loss of such entities is allocated
to the minority interests based on their percentage ownership throughout the
year and is included in other income (expense) in the consolidated statements of
operations.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities, the
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting periods. Actual results could differ from these estimates.
Cash and Cash Equivalents:
All unrestricted, highly liquid investments purchased with a remaining
maturity of three months or less are considered to be cash equivalents. The
Company maintains cash and cash equivalents with various financial institutions
in excess of the amount insured by the Federal Deposit Insurance Corporation.
Management believes the credit risk related to these cash and cash equivalents
is minimal.
F-6
<PAGE> 31
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--CONTINUED
Restricted Cash:
The long-term debt agreements discussed in Note 8 and the franchise
agreements referred to in Note 16 provide that cash from hotel operations be
restricted for the future acquisition or replacement of property and equipment
each year based on a percentage of gross hotel revenues. The requirements range
from 3% to 6%. Capital restricted under applicable government insurance
regulations is also included in restricted cash, and represents 20% of the
annual insurance premiums written by the Company (see Note 14).
Property and Equipment:
Property and equipment are recorded at cost, which includes the allocated
purchase price for hotel acquisitions, and are depreciated on the straight-line
method over their estimated useful lives. Expenditures for repairs and
maintenance are expensed as incurred. Expenditures for major renewals and
betterments that significantly extend the useful life of existing property and
equipment are capitalized and depreciated. The cost and related accumulated
depreciation applicable to property no longer in service are eliminated from the
accounts and any gain or loss thereon is included in operations.
Investments in Hotel Real Estate:
The Company accounts for investments in less than 50% but greater than 20%
owned hotels in which it can exert significant influence under the equity method
of accounting. All other investments are accounted for under the cost method.
Investments in hotel real estate consist of two hotels accounted for under the
equity method and five hotels accounted for under the cost method.
Officers and Employees Notes Receivable:
Officers and employees notes receivable consist principally of the
severance payments discussed in Note 3 and notes from two executives. The notes
from two executives bear interest, are fully recourse to the borrowers and are
forgiven and expensed ratably, if certain conditions are met, until the notes
mature in June 2006. The Company also makes loans from time to time to other
employees, which are payable upon demand and generally do not bear interest
until such demand is made. Certain notes may be forgiven and expensed provided
certain conditions are satisfied. Officers and employees notes receivable also
include a note with an officer and significant shareholder of the Company (see
Note 16).
Intangible and Other Assets:
Intangible and other assets consist of the amounts paid to obtain
management and lease contracts, deferred financing fees and long-term notes
receivable with managed hotels. Goodwill is also included in intangible and
other assets, and represents the excess of the purchase price over the net
assets of businesses acquired. Intangible and other assets, except for the
long-term notes receivable, are amortized on the straight-line method over the
life of the underlying contracts or estimated useful lives.
Impairment of Long-Lived Assets and Long-Lived Assets to be Disposed of:
The carrying values of long-lived assets, which include property and
equipment and all intangible assets, are evaluated periodically in relation to
the operating performance and future undiscounted cash flows of the underlying
assets. Adjustments are made if the sum of expected future net cash flows is
less than book value.
F-7
<PAGE> 32
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--CONTINUED
Deferred Income Taxes:
Deferred income taxes are recorded using the liability method. Under this
method, deferred tax assets and liabilities are provided for the differences
between the financial statement and the tax basis of assets and liabilities
using enacted tax rates in effect for the years in which the differences are
expected to reverse.
Revenue Recognition:
Management and related fees are recognized when earned. The Owned Hotels
and Leased Hotels recognize revenue from their rooms, food and beverage and
other departments as earned on the close of each business day.
Reimbursable Expenses:
The Company is reimbursed for costs associated with providing insurance
services, purchasing and renovation services, MIS support, centralized
accounting, leasing, training and relocation programs to owned, managed and
leased hotels. These revenues are included in management and related fees and
the corresponding costs are included in general and administrative and payroll
and related benefits in the consolidated statements of operations.
Capitalized Interest:
Costs related to the construction of new hotels or significant renovations
to Owned Hotels include capitalized interest, which is amortized over the
estimated useful lives of the underlying assets. The Company capitalized
interest costs of approximately $2,300 in 1997.
Insurance:
Insurance premiums are recorded as income on a pro-rata basis over the life
of the related policies, with the portion applicable to the unexpired terms of
the policies in force recorded as unearned premium reserves. Losses are provided
for reported claims, claims incurred but not reported and claims settlement
expense at each balance sheet date. Such losses are based on management's
estimate of the ultimate cost of settlement of claims. Actual liabilities may
differ from estimated amounts. Any changes in estimates are reflected in current
earnings.
Financial Instruments:
The Company uses interest rate hedge contracts for the purpose of hedging
interest rate exposures, which involve the exchange of fixed and floating rate
interest payments without the exchange of the underlying principal amounts. The
amounts to be paid or received are accrued as interest rates change and
recognized over the life of the contracts as an adjustment to interest expense.
Gains and losses realized from the termination of interest rate hedges are
recognized over the remaining life of the hedge contract. As a policy, the
Company does not engage in speculative or leveraged transactions, nor does the
Company hold or issue financial instruments for trading purposes.
Recently Adopted Accounting Pronouncements:
The Company has adopted Statement of Financial Accounting Standard (SFAS)
No. 128 "Earnings per Share" issued in February 1997. This statement requires
the disclosure of basic and diluted earnings per share
F-8
<PAGE> 33
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--CONTINUED
and revises the method required to calculate these amounts. The adoption of this
standard did not materially impact previously reported earnings per share
amounts.
New Accounting Pronouncements:
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131
"Disclosures about Segments of an Enterprise and Related Information." The new
standard requires that all public business enterprises report information about
operating segments, as well as specifies revised guidelines for determining an
entity's operating segments and the type and level of financial information to
be disclosed. The new standard, which is effective for the fiscal year ending
December 31, 1998, will not have a financial impact on the Company.
Reclassifications:
Certain amounts in previously issued financial statements have been
reclassified to conform to the presentation adopted in the 1997 consolidated
financial statements.
3. MERGER WITH PATRIOT AMERICAN HOSPITALITY:
On December 2, 1997, the Company entered into an Agreement and Plan of
Merger with Patriot American Hospitality, Inc. and Wyndham International, Inc.
(formerly Patriot American Hospitality Operating Company) (collectively,
Patriot), pursuant to which the Company will merge with and into Patriot, with
Patriot being the survivor (the Merger). The Merger is contingent upon, among
other customary conditions, the approval by the shareholders of the Company and
Patriot, and is expected to be consummated in the second quarter of 1998. The
Agreement and Plan of Merger provides for the payment by the terminating party,
as the case may be, of a break-up fee of $50,000 if the Merger is terminated
under certain circumstances.
In connection with the Merger, certain change-in-control and other
severance-related provisions will be triggered. For tax planning purposes, the
Company made advances totaling $6,451 to certain executives in 1997 of the
severance amounts that would be due to them under their change-in-control
agreements upon consummation of the Merger. These executives have agreed to
repay the net after-tax amounts (including tax benefits to the executives) of
such payments to the Company if the Merger does not occur, and, as such, these
amounts are included in officers and employees notes receivable on the
consolidated balance sheet as of December 31, 1997. Patriot has agreed, in
certain circumstances, to indemnify the Company for certain lost tax benefits
resulting from these payments in the event that the Merger does not occur.
On March 30, 1998, Marriott International, Inc. (Marriott) filed a lawsuit
in the United States District Court for the District of Maryland seeking to
enjoin the Merger until the Company complies with certain rights of notification
and first refusal which Marriott alleges would be triggered by the Merger. There
can be no assurance as to the outcome of this proceeding.
4. PUBLIC OFFERINGS:
IPO:
In June 1996, the Company completed an initial public offering of
12,448,350 shares of its Common Stock for net proceeds of $240,453. In
connection with the IPO, Blackstone Real Estate Advisors, L.P. and certain of
its affiliates (collectively, Blackstone) exercised an option to receive
2,133,333 shares of Common Stock of the Company for an exercise price of
$23,300.
F-9
<PAGE> 34
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
4. PUBLIC OFFERINGS--CONTINUED
In connection with the IPO, the Company acquired all of Blackstone's equity
interests in 13 of the Owned Hotels for a cash purchase price of $124,400, and
Blackstone contributed to the Company its equity interest in one Owned Hotel in
consideration for $8,300 of Common Stock of the Company. Additionally, in
connection with the IPO, the principal shareholders of IHC contributed to the
Company all of the outstanding shares of common stock of IHC and their equity
interests in these 14 Owned Hotels in exchange for Common Stock of the Company.
The acquisition of Blackstone's equity interests has been accounted for using
the purchase method of accounting, except that carryover basis was used for 9.3%
of the acquired interests. The contributions of IHC's common stock and equity
interests in hotels in exchange for Common Stock of the Company have been
accounted for using carryover bases.
Follow-on Offering:
In December 1996, the Company completed a follow-on public offering of
4,000,000 shares of its Common Stock at a price of $25 per share (the Follow-on
Offering). In January 1997, the underwriters purchased an additional 600,000
shares of Common Stock at $25 per share pursuant to over-allotment options. Net
proceeds to the Company were $93,720 from the Follow-on Offering and $14,286
from the exercise of the over-allotment options. The Company recorded the
exercise of the over-allotment options as stock subscription receivable, net of
the underwriting discount, on the consolidated balance sheet as of December 31,
1996.
5. ACQUISITIONS:
During 1997, the Company acquired 11 Owned Hotels and minority interests in
five other hotels for a total acquisition price of approximately $423,141. Such
acquisitions were accounted for using the purchase method of accounting. Five of
the 11 Owned Hotels acquired in 1997 were purchased from entities partially
owned by a significant shareholder (see Note 16). Additionally, the Company
opened two Owned Hotels that were developed for a total cost of approximately
$15,343, as well as entered into long-term operating leases with Equity Inns
REIT for 31 hotels.
During 1996 and subsequent to the IPO and related transactions discussed in
Note 4, the Company acquired 13 Owned Hotels and minority interests in two other
hotels for a total acquisition price of approximately $328,374. In November
1996, the Company acquired for 1,957,895 shares of Common Stock the management
and leasing businesses affiliated with Equity Inns REIT, which resulted in
goodwill of approximately $26,691. The businesses consisted of eight management
contracts and 48 long-term lease contracts. The above acquisitions were
accounted for using the purchase method of accounting. One of the 13 Owned
Hotels acquired in 1996 was purchased from an entity partially owned by
significant shareholders (see Note 16).
F-10
<PAGE> 35
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
6. PROPERTY AND EQUIPMENT:
Property and equipment consisted of the following at December 31:
<TABLE>
<CAPTION>
1996 1997
-------- ----------
<S> <C> <C>
Land........................................................ $ 95,192 $ 138,621
Buildings and improvements (15 to 40 years)................. 545,565 925,842
Furniture, fixtures and equipment (5 to 20 years)........... 112,808 183,709
Construction in progress.................................... 669 4,403
-------- ----------
754,234 1,252,575
Less accumulated depreciation............................... 45,083 98,664
-------- ----------
$709,151 $1,153,911
======== ==========
</TABLE>
Depreciation expense was approximately $467, $8,420 and $31,976 for the
years ended December 31, 1995, 1996 and 1997, respectively.
7. INTANGIBLE AND OTHER ASSETS:
Intangible and other assets consisted of the following at December 31:
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Management contracts (3 to 10 years)........................ $24,825 $ 8,048
Lease contracts (10 to 15 years)............................ 22,600 24,866
Goodwill (25 years)......................................... 21,691 22,191
Deferred financing fees (2 to 7 years)...................... 14,862 18,705
Long-term notes receivable (Note 2)......................... -- 5,335
Other....................................................... 4,477 6,891
------- -------
88,455 86,036
Less accumulated amortization............................... 21,863 12,517
------- -------
$66,592 $73,519
======= =======
</TABLE>
Fully amortized management contracts of $17,757 related to transactions
that occurred in 1989 were written off in 1997.
8. LONG-TERM DEBT:
Long-term debt consisted of the following at December 31:
<TABLE>
<CAPTION>
1996 1997
-------- --------
<S> <C> <C>
Term Loans and Revolving Credit Facility.................... $321,600 $637,600
CGL Loan.................................................... 29,250 29,250
Owned Hotel Loans........................................... 56,420 132,604
Other....................................................... 541 670
-------- --------
407,811 800,124
Less current portion........................................ 11,767 53,001
-------- --------
$396,044 $747,123
======== ========
</TABLE>
In June 1996, the Company entered into a $195,000 Term Loan (Term A) and a
$100,000 Revolving Credit Facility (collectively, the Credit Facilities). In
October 1996, the Company amended the Credit
F-11
<PAGE> 36
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
8. LONG-TERM DEBT--CONTINUED
Facilities by converting the borrowings outstanding under the Revolving Credit
Facility to a $100,000 Term Loan (Term B) and increasing the Revolving Credit
Facility capacity to $200,000. In May 1997, the Company further amended its
Credit Facilities by converting the borrowings outstanding under the Revolving
Credit Facility to a $135,000 Term Loan (Term C) and increasing the Revolving
Credit Facility capacity to $350,000. The Term Loans are payable through June
2003 (Terms A and B) and June 2004 (Term C) in escalating quarterly installments
and final balloon payments. The Revolving Credit Facility is payable in June
2003, and provides for borrowings under letters of credit, revolving loans for
working capital and acquisition loans to be used to finance additional hotel
acquisitions. As of December 31, 1997, the Company had approximately $128,000
available on the Revolving Credit Facility. The Credit Facilities include
certain mandatory prepayment provisions.
In June 1996, the Company purchased a subordinated participation interest
in the $119,250 mortgage indebtedness of Interstone/CGL Partners, L.P., a
majority-owned subsidiary of the Company (the CGL Loan). As of December 31, 1996
and 1997, on a consolidated basis, the Company had $29,250 outstanding on the
CGL Loan. The CGL Loan requires no principal payments until the indebtedness
matures in June 2003. All other terms of the CGL Loan, including interest and
covenants, are identical to the Credit Facilities.
Interest on Terms A and B and the Revolving Credit Facility is payable
based on leveraged EBITDA ratio benchmarks. This effective rate was 8.00% at
December 31, 1997. Interest on Term C and the CGL Loan is based on a fixed
percentage of 2.25% and 2.00%, respectively, over a reserve-adjusted Eurodollar
rate. The effective rates at December 31, 1997 were 8.25% and 7.85% on the Term
C and the CGL Loan, respectively.
In an effort to achieve its overall desired position of fixed and floating
rates, the Company has entered into five interest rate hedge contracts (see Note
15). Four of the contracts are interest rate caps that limit LIBOR between 6.0%
and 8.5% on notional amounts ranging from $30,000 to $225,900 and expire at
varying times through August 2004. The Company also has an interest rate swap
that provides for a fixed LIBOR rate of 5.8% on $72,000 of indebtedness through
December 2000.
A nonrefundable commitment fee equal to 3/8 of 1% of the unused portion of
the Revolving Credit Facility is payable quarterly. Additionally, letter of
credit fees equal to 2.25% of the outstanding letters of credit are payable
quarterly.
The Credit Facilities and the CGL Loan contain certain restrictive
covenants, including several financial ratios and restrictions on the payment of
dividends, among other things. At December 31, 1997, the Company was not in
compliance with two covenants that related to certain lease expenditures and
employee loans. The non-compliance has been subsequently waived by the lenders,
and the Company currently anticipates meeting all covenants in the future. The
Company has pledged substantially all of the assets of the Company and an
interest in the rights to the cash flows of certain of the Owned Hotels as
collateral for the Credit Facilities and the CGL Loan.
In connection with seven Owned Hotel acquisitions, the Company incurred
loans (the Owned Hotel Loans) totaling $132,604. During 1997, the Company
refinanced one of the existing Owned Hotel loans in the amount of $31,000 which
was due in January 1998. The maturity for this loan has been extended to
December 1998. The Owned Hotel Loans are due in varying terms ranging from
December 1998 through October 2005, some of which include certain mandatory
prepayment provisions. Interest was payable at rates between 7.47% and 9.50% as
of December 31, 1997. The Owned Hotel Loans are collateralized by the assets of
the respective hotels in which the proceeds of each loan were used to acquire.
F-12
<PAGE> 37
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
8. LONG-TERM DEBT--CONTINUED
Aggregate scheduled maturities of long-term debt for each of the five years
ending December 31 and thereafter are as follows:
<TABLE>
<S> <C>
1998...................................................... $ 53,001
1999...................................................... 33,328
2000...................................................... 52,418
2001...................................................... 60,006
2002...................................................... 142,137
Thereafter................................................ 459,234
--------
$800,124
========
</TABLE>
9. COMMITMENTS AND CONTINGENCIES:
The Company provides financial guarantees to the owners of the Leased
Hotels for certain minimum operating performance levels, which are annually
increased by the consumer price index and expire through 2012. Presently,
management does not expect to incur any claims against these lease guarantees.
Minimum future lease payments are computed based on the base rent of each lease,
as defined, and are as follows:
<TABLE>
<S> <C>
1998...................................................... $ 52,682
1999...................................................... 52,682
2000...................................................... 52,682
2001...................................................... 52,682
2002...................................................... 52,682
Thereafter................................................ 423,421
--------
$686,831
========
</TABLE>
The Company accounts for the leases of office space (the office leases
expire at varying dates through 2003), certain furniture, fixtures and equipment
(the equipment leases expire at varying dates through 2003) and land leases
associated with four of the Owned Hotels (the land leases expire at varying
dates through 2086) as operating leases. Total rent expense amounted to
approximately $912, $2,922 and $4,458 for the years ended December 31, 1995,
1996 and 1997, respectively. The following is a schedule of future minimum lease
payments under these leases:
<TABLE>
<S> <C>
1998....................................................... $ 5,855
1999....................................................... 5,129
2000....................................................... 4,203
2001....................................................... 3,307
2002....................................................... 2,722
Thereafter................................................. 51,632
-------
$72,848
=======
</TABLE>
In the ordinary course of business, various lawsuits, claims and
proceedings have been or may be instituted or asserted against the Company.
Based on currently available facts, management believes that the disposition of
matters that are pending or asserted will not have a material adverse effect on
the consolidated financial position, results of operations or liquidity of the
Company.
F-13
<PAGE> 38
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
10. PREFERRED AND COMMON STOCK:
The Company has the authority to issue up to 25,000,000 shares of preferred
stock having such rights, preferences and privileges as designated by the Board
of Directors of the Company. The rights of the holders of the Company's Common
Stock will be subject to, and may be adversely affected by, the rights of the
holders of any shares of such preferred stock that may be issued in the future.
The following represents the number of shares of Common Stock authorized
for issuance under the Company's stock plans:
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
1996 Equity Incentive Plan and the Stock Option Plan for
Non-Employee Directors.................................... 2,500,000 2,500,000
Employee Stock Purchase Plan................................ 500,000 500,000
Management Bonus Plan....................................... 250,000 250,000
--------- ---------
3,250,000 3,250,000
========= =========
</TABLE>
The 1996 Equity Incentive Plan and the Stock Option Plan for Non-Employee
Directors provide for options to be granted to eligible employees and directors
to purchase shares of Common Stock. The option price is established at the grant
date at a price not less than the current market value. The options generally
vest over a three year period and expire after ten years. The Employee Stock
Purchase Plan is designed to be a non-compensatory plan, whereby eligible
employees may elect to withhold a maximum of 8% of their salary and use such
amounts to purchase Common Stock. The Management Bonus Plan provides for bonuses
to be paid to key executives of the Company based upon the achievement of
specified goals of both the Company and the executive. Bonuses are based on a
percentage of the individual's annual salary, and up to 20% of each executive's
bonus, at the discretion of management, may be payable in the form of shares of
Common Stock.
The Company has elected to account for stock-based employee compensation
arrangements under the provisions of Accounting Principles Board Opinion No. 25
"Accounting for Stock Issued to Employees" rather than SFAS No. 123 "Accounting
for Stock-Based Compensation." If compensation cost had been determined based on
the fair value at the grant dates according to SFAS No. 123, the Company's net
(loss) income would have been changed to the pro forma amounts shown below:
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Net (loss) income:
As reported............................................... $(1,616) $43,586
Pro forma................................................. (2,781) 40,231
Basic earnings per common share:
As reported............................................... -- 1.23
Pro forma................................................. -- 1.14
Diluted earnings per common share:
As reported............................................... -- 1.22
Pro forma................................................. -- 1.13
</TABLE>
The effect on basic and diluted earnings per common share in 1996 is not
meaningful and, therefore, has not been provided (see Note 18).
F-14
<PAGE> 39
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
10. PREFERRED AND COMMON STOCK--CONTINUED
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes pricing model with the following assumptions:
<TABLE>
<CAPTION>
1996 1997
---- ----
<S> <C> <C>
Weighted average risk-free interest rate.................... 6.3% 6.3%
Expected dividend yield..................................... -- --
Expected volatility......................................... 30.3% 31.5%
Expected life (number of years)............................. 3 3
</TABLE>
The transactions for stock options issued under the 1996 Equity Incentive
Plan and the Stock Option Plan for Non-Employee Directors were as follows:
<TABLE>
<CAPTION>
WEIGHTED AVERAGED
-----------------------------------
NUMBER OF REMAINING VALUE EXERCISE RANGE OF
OPTIONS LIFE (YEARS) PER SHARE PRICE EXERCISE PRICE
--------- --- ----- ------ -------------
<S> <C> <C> <C> <C> <C>
Outstanding, December 31, 1995.......... --
Granted................................. 1,589,250 $22.66 $21.00--$26.75
Exercised............................... -- -- --
Canceled................................ 12,500 $21.00 $21.00
---------
Outstanding, December 31, 1996.......... 1,576,750 9.6 $6.44 $22.66 $21.00--$26.75
Granted................................. 65,000 $25.12 $24.13--$27.25
Exercised............................... 14,987 $22.00 $21.00--$25.00
Canceled................................ 44,255 $24.06 $21.00--$25.00
---------
Outstanding, December 31, 1997.......... 1,582,508 8.7 $6.47 $22.73 $21.00--$27.25
=========
Exercisable, December 31, 1996.......... --
Exercisable, December 31, 1997.......... 505,836 8.7 $22.63
Shares reserved for future options as of
December 31, 1997..................... 917,492
</TABLE>
11. SUPPLEMENTAL INCOME STATEMENT INFORMATION:
In December 1995, IHC granted stock options to certain officers to purchase
shares of common stock of IHC. The exercise price of certain stock options was
determined to be below fair market value based on an independent market
valuation. No stock options were exercisable at December 31, 1995. The unearned
compensation related to the stock options granted by IHC was being charged to
expense over the vesting period.
Prior to the IPO, the Company issued 785,533 shares of Common Stock to
certain employees in consideration for the cancellation of the stock options
issued by IHC in 1995. The shares were valued based on the estimated value of
the Common Stock at the time the shares were issued. As a result of the
cancellation of the stock options issued by IHC in 1995 and the issuance of the
Common Stock at no cost to the recipients, the Company reversed the unamortized
unearned compensation recorded by IHC in 1995 and recorded non-cash compensation
expense of $11,896.
In 1996, the Company recorded an extraordinary loss of $7,733, net of tax
benefit of $3,997, as a result of the early extinguishment of certain debt. The
extraordinary loss related principally to the payment of prepayment penalties
and loan commitment fees and the write-off of deferred financing fees.
F-15
<PAGE> 40
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
12. INCOME TAXES:
The provision for income taxes consisted of the following for the years
ended December 31:
<TABLE>
<CAPTION>
1996 1997
------- -------
<S> <C> <C>
Current
Federal............................................... $ 4,153 $11,477
State................................................. 504 427
------- -------
4,657 11,904
------- -------
Deferred:
Federal:.............................................. 6,223 13,638
State................................................. 448 1,202
------- -------
6,671 14,840
------- -------
Income tax expense...................................... 11,328 26,744
Income tax benefit from extraordinary loss.............. 3,997 --
------- -------
$15,325 $26,744
======= =======
</TABLE>
A reconciliation of the Company's effective tax rate to the federal
statutory rate for the years ended December 31 is as follows:
<TABLE>
<CAPTION>
1996 1997
---- ----
<S> <C> <C>
Federal statutory rate...................................... 35% 35%
State taxes, net of federal benefit......................... 2 2
IHC loss as an S corporation................................ 23 --
Conversion from S corporation to C corporation.............. 50 --
Other....................................................... 7 1
--- ---
Effective tax rate.......................................... 117% 38%
=== ===
</TABLE>
The components of net deferred tax assets and liabilities at December 31
consisted of the following:
<TABLE>
<CAPTION>
1996 1997
-------------------- --------------------
ASSETS LIABILITIES ASSETS LIABILITIES
------ ------- ------ -------
<S> <C> <C> <C> <C>
Depreciation and amortization................ $ -- $10,809 $ -- $14,238
Minority interests........................... 7,298 -- 1,966 --
Payroll and related benefits................. 1,588 -- 3,150 --
Self-insured health trust.................... 927 -- 34 --
Leases....................................... -- -- -- 7,414
Other........................................ -- 1,436 -- 770
------ ------- ------ -------
$9,813 $12,245 $5,150 $22,422
====== ======= ====== =======
</TABLE>
Prior to the IPO, the Company's predecessors were organized as S
corporations, partnerships and limited liability companies for federal and state
income tax purposes. Accordingly, the predecessors were not subject to income
tax because all taxable income or loss of the predecessors was reported on the
tax returns of their owners. As a result of the change in the Company's tax
status to a C corporation concurrent with the IPO, the Company recorded income
tax expense of $4,881 to establish deferred taxes existing as of the date of the
change in tax status.
F-16
<PAGE> 41
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
13. SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid for interest and income taxes consisted of:
<TABLE>
<CAPTION>
1995 1996 1997
------- ------- -------
<S> <C> <C> <C>
Interest.............................................. $ 507 $13,629 $44,633
Income taxes.......................................... -- 7,710 9,618
</TABLE>
Non-cash investing and financing activities consisted of:
<TABLE>
<S> <C> <C> <C>
Assumption of liability by principal shareholder...... 1,220 -- --
Assumption of shareholders' liability................. 12,295 -- --
Unearned compensation related to 1995 stock options... 3,263 (3,263) --
Unearned compensation related to Common Stock......... -- 379 567
Notes payable issued to shareholders.................. -- 30,000 --
Stock subscription receivable, net.................... -- 14,286 --
Issuance of Common Stock for acquisitions............. -- 54,800 --
Assumption of long-term debt related to
acquisitions........................................ -- -- 58,086
</TABLE>
14. INSURANCE:
The Company provides certain insurance coverage to hotels under the terms
of the various management and lease contracts. This insurance is generally
arranged through third-party carriers. Northridge Insurance Company
(Northridge), a subsidiary of the Company, reinsures a portion of the coverage
from these third-party primary insurers. The policies provide for layers of
coverage with minimum deductibles and annual aggregate limits. The policies are
for coverage relating to innkeepers' losses (general/comprehensive liability),
wrongful employment practices, garagekeeper's legal liability, replacement cost
automobile losses and real and personal property insurance.
The Company is liable for any deficiencies in the IHC Employee Health and
Welfare Plan (and related Health Trust), which provides employees of the Company
with group health insurance benefits. The Company has a financial indemnity
liability policy with Northridge which indemnifies the Company for certain
obligations for the deficiency in the related Health Trust. The premiums for
this coverage received from the properties managed by the Company, net of
intercompany amounts paid for employees at the Company's corporate offices and
Owned and Leased Hotels, are recorded as direct premiums written. There was no
deficiency in the related Health Trust as of December 31, 1997.
All accounts of Northridge are classified with assets and liabilities of a
similar nature in the consolidated balance sheets. The consolidated statements
of operations include the insurance income earned and related insurance expenses
incurred. The insurance income earned has been included in management and
related fees in the consolidated statements of operations and is comprised of
the following:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------
1995 1996 1997
------ ------ ------
<S> <C> <C> <C>
Reinsurance premiums written............................. $4,981 $4,848 $3,664
Direct premiums written.................................. 2,477 2,032 2,221
Reinsurance premiums ceded............................... (422) (414) (544)
Change in unearned premiums reserve...................... (62) 158 (55)
Loss sharing premiums.................................... 698 1,101 1,687
------ ------ ------
Insurance income......................................... $7,672 $7,725 $6,973
====== ====== ======
</TABLE>
F-17
<PAGE> 42
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
15. FINANCIAL INSTRUMENTS:
The carrying values and fair values of the Company's financial instruments
at December 31 consisted of:
<TABLE>
<CAPTION>
1996 1997
------------------- -------------------
CARRYING FAIR CARRYING FAIR
VALUE VALUE VALUE VALUE
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Cash and cash equivalents................. $ 32,323 $ 32,323 $ 31,988 $ 31,988
Restricted cash........................... 15,995 15,995 3,823 3,823
Investment in marketable securities....... 540 540 540 390
Non-current receivables................... 4,643 4,643 17,492 17,492
Interest rate caps........................ 5,056 3,268 3,132 619
Interest rate swap........................ -- 976 -- (32)
Long-term debt, including current
portion................................. 407,811 406,835 790,498 790,530
</TABLE>
The following methods and assumptions were used to estimate the fair value
of each class of financial instruments for which it is practicable to estimate
that value:
Cash and cash equivalents and restricted cash:
The carrying amounts approximate fair value because of the short maturity
of these investments.
Investment in marketable securities:
The fair value of the investment in marketable securities is based on the
quoted market price at December 31, 1997, and is included in investments in
hotel real estate in the consolidated balance sheets.
Non-current receivables:
The fair value of noncurrent receivables is based on anticipated cash flows
and approximates carrying value.
Interest rate hedges:
The Company manages its debt portfolio by using interest rate caps and
swaps to achieve an overall desired position of fixed and floating rates. The
fair value of interest rate hedge contracts is estimated based on quotes from
the market makers of these instruments and represents the estimated amounts that
the Company would expect to receive or pay to terminate the contracts. Credit
and market risk exposures are limited to the net interest differentials. The
Company is exposed to credit loss in the event of nonperformance by
counterparties on the above instruments, but does not anticipate nonperformance
by any of the counterparties.
Long-term debt:
The fair value of long-term debt is based on interest rates that are
currently available to the Company for issuance of debt with similar terms and
remaining maturities. The fair value of the notional amount of long-term debt
hedged by the swap has been increased or reduced by the fair value of the swap.
16. FRANCHISE AGREEMENTS AND RELATED PARTY TRANSACTIONS:
Franchise Agreements:
The Owned Hotels and the Leased Hotels are generally operated under
franchise agreements with various franchisors. The Owned Hotels are licensed
under the following franchise names: Marriott (20),
F-18
<PAGE> 43
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
16. FRANCHISE AGREEMENTS AND RELATED PARTY TRANSACTIONS--CONTINUED
Hilton (6), Radisson (4), Embassy Suites (3), Westin (2), Courtyard by Marriott
(2), Sheraton (1) and Holiday Inn (1). The Leased Hotels are licensed under the
following franchise names: Hampton Inn (57), Residence Inn (9), Super 8 Motel
(6), Holiday Inn (5), Homewood Suites (5), Sleep Inn (4) and Comfort Inn (3).
The terms of the franchise agreements range from three to 28 years and require
ongoing fees principally based on a percentage of hotel room revenues and food
and beverage revenues.
Transactions with Significant Shareholders:
Of the total revenues earned, approximately $7,886, $7,386 and $3,882 for
the years ended December 31, 1995, 1996 and 1997, respectively, was earned from
hotels in which Milton Fine, Chairman of the Board of Directors and a
significant shareholder of the Company (herein referred to as Mr. Fine), has an
ownership interest. Accounts receivable of approximately $302 and $314 at
December 31, 1996 and 1997, respectively, was due from these hotels. The Company
has waived the management fees for one of these hotels through November 1998.
Five of the 11 Owned Hotels acquired during 1997 were purchased from
entities in which Mr. Fine owned interests ranging from 5.3% to 25.0%. Mr. Fine
retained interests ranging from 0.7% to 2.2% in four of the hotels, as well as
gained a 1.0% interest in one other Owned Hotel that was acquired by the Company
in 1997.
In October 1997, the Company entered into a note receivable with Mr. Fine
that permits up to $1,000 of borrowings. The note receivable bears interest at
6.3%. Semi-annual interest-only payments are due until it matures in December
2002, at which time all unpaid interest and principal is due. As of December 31,
1997, there was $405 outstanding on the note receivable.
In 1996, the Company acquired a controlling interest in one hotel for
$23,787, which includes $9,627 in loans to the previous owners. Significant
shareholders of the Company previously owned a 50% interest in the hotel, one of
which retained a 1.4% interest as a result of the acquisition. The $9,627 in
loans incurred as a result of the acquisition includes a $2,733 note payable to
Mr. Fine, which is included in the Owned Hotel Loans described in Note 8.
17. PREDECESSOR ENTITY EQUITY TRANSACTIONS:
Pursuant to a reorganization in 1995, IHC merged a number of companies and
created subsidiaries for certain other entities which were all under common
control. The reorganization was accounted for in a manner similar to that used
in pooling-of-interests accounting. Additionally, concurrent with the
reorganization, IHC assumed a $12,995 obligation of its principal shareholder
that was accounted for as a distribution of capital. IHC also recorded a
contribution of capital when indebtedness in the amount of $1,220 that was owed
to an affiliate was assumed by the principal shareholder. The reorganization
resulted in the reclassification of $42 between common stock and paid-in capital
and the reclassification of $4,478 between partners' capital and paid-in
capital.
In March 1996, the Company made a capital distribution by issuing notes
payable to the shareholders of IHC in the aggregate amount of $30,000. Such
notes were repaid in June 1996 with the proceeds from the IPO.
18. EARNINGS PER SHARE:
Prior to the consummation of the Company's IPO, the predecessors of the
Company were organized as S corporations, partnerships and limited liability
companies. Accordingly, the Company believes that the
F-19
<PAGE> 44
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
18. EARNINGS PER SHARE--CONTINUED
earnings per share calculations required to be presented are not meaningful for
periods prior to the IPO and, therefore, have not been provided.
Basic earnings per common share was computed by dividing earnings by the
average number of common shares outstanding. Diluted earnings per common share
assumes the issuance of common stock for all potentially dilutive equivalents
outstanding. The details of basic and diluted earnings per common share are as
follows:
<TABLE>
<CAPTION>
1997
-------
<S> <C>
Net income.............................................. $43,586
-------
Weighted average number of common shares outstanding.... 35,320
-------
Basic earnings per common share......................... $ 1.23
=======
Shares issuable upon exercise of dilutive outstanding
stock options......................................... 396
-------
Weighted average number of diluted common shares
outstanding........................................... 35,716
-------
Diluted earnings per common share....................... $ 1.22
=======
</TABLE>
19. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED):
The following table sets forth certain items included in the Company's
unaudited consolidated financial statements for each quarter of fiscal 1997 and
1996:
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
-------- -------- -------- --------
<S> <C> <C> <C> <C>
FISCAL 1997:
Total revenues...................................... $129,856 $158,209 $181,524 $192,123
Operating income.................................... 24,303 31,499 27,950 33,280
Net income.......................................... 10,208 12,394 9,898 11,086
Basic earnings per common share..................... .29 .35 .28 .31
Diluted earnings per common share................... .29 .35 .28 .31
FISCAL 1996:
Total revenues...................................... $ 12,295 $ 15,946 $ 65,530 $ 96,614
Operating income (loss)............................. 4,607 (5,775) 16,602 18,699
Income (loss) before
extraordinary items............................... 4,236 (12,299) 7,366 6,814
Net income (loss)................................... 4,236 (19,942) 7,366 6,724
Basic earnings per common share..................... -- -- .26 .22
Diluted earnings per common share................... -- -- .26 .22
</TABLE>
20. PRO FORMA FINANCIAL INFORMATION (UNAUDITED):
The following unaudited pro forma information is presented as if the
transactions discussed in Notes 4, 5 and 8 had occurred on January 1, 1996. In
management's opinion, all material pro forma adjustments necessary to reflect
the effects of these transactions have been made. The pro forma information does
not include earnings on the Company's pro forma cash and cash equivalents or
certain one-time charges to income, and does not purport to present what the
actual results of operations of the Company would have been
F-20
<PAGE> 45
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--CONTINUED
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
---------
20. PRO FORMA FINANCIAL INFORMATION (UNAUDITED)--CONTINUED
if the previously mentioned transactions had occurred on such date or to project
the results of operations of the Company for any future period.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1996 1997
-------- --------
<S> <C> <C>
Total revenues.............................................. $717,734 $766,483
Operating income............................................ 111,776 134,353
Net income.................................................. 32,342 48,745
Pro forma basic earnings per common share................... .91 1.38
Pro forma diluted earnings per common share................. .90 1.36
</TABLE>
21. SUBSEQUENT EVENTS:
In January 1998, the Company acquired a controlling interest in one hotel
for an acquisition price of approximately $32,000. A portion of this acquisition
was purchased for $2,900 from an entity partially owned by a significant
shareholder of the Company. This acquisition has not been included in the pro
forma information in Note 20. In connection with this acquisition, the Company
entered into a subordinated bridge debt facility (the Bridge Facility) that
provides for up to $75,000 of additional borrowings. The Bridge Facility matures
on the earlier of July 20, 1998 or the closing of the Merger discussed in Note
3. The Company borrowed $14,000 under the Bridge Facility to finance this
acquisition.
Effective March 1, 1998, the Company sold a 47.8% interest in three Owned
Hotels to Host Marriott Corporation for $49,193. This acquisition has not been
included in the pro forma information in Note 20.
F-21
<PAGE> 46
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
2.1 Agreement and Plan of Merger, dated as of December 2, 1997,
among the Company, Patriot American Hospitality, Inc.
("Patriot") and Wyndham International, Inc. (formerly
Patriot American Hospitality Operating Company) ("Wyndham")
(previously filed as Exhibit 2.1 to Patriot's and Wyndham's
Registration Statement on Form S-4, as amended (Registration
No. 333-44203), and incorporated herein by reference)
3.1 Amended and Restated Articles of Incorporation of the
Company(1)
3.2 Amended and Restated Bylaws of the Company(1)
4.1 Specimen Common Stock Certificate(2)
4.2(a) Credit Agreement, dated as of June 25, 1996, among
Interstate Hotels Corporation, Credit Lyonnais and the other
parties signatory thereto(1)
4.2(b) First Amendment to Credit Agreement, dated as of October 21,
1996, among Interstate Hotels Corporation, Credit Lyonnais
and the other parties signatory thereto(2)
4.2(c) Amended and Restated Credit Agreement, dated as of May 28,
1997, among Interstate Hotels Corporation, Credit Lyonnais
and other parties signatory thereto
10.1 Agreement of Purchase and Sale, dated as of March 29, 1996,
among the Sellers named therein and IHC Member
Corporation(3)
10.2 Contribution Agreement, dated as of March 29, 1996, among
Interstate Hotels Corporation and the other persons
signatory thereto(3)
10.3 Stockholders Agreement, dated as of June 25, 1996, among the
Company, Blackstone Real Estate Advisors L.P. and the
shareholders named therein(1)
10.4 Registration Rights Agreement, dated as of June 25, 1996,
among the Company and the shareholders named therein(1)
10.5 Master Agreement, dated as of April 1, 1996, among Host
Funding, Inc., Crossroads Hospitality Tenant Company, L.L.C.
and Crossroads Hospitality Company, L.L.C.(3)
10.6 Interstate Hotels Company Executive Retirement Plan(3)
10.7 Interstate Hotels Company 1996 Equity Incentive Plan(3)
10.8 Interstate Hotels Company Employee Stock Purchase Plan, as
amended through January 1, 1997 (previously filed as Exhibit
99.1 to the Company's Registration Statement on Form S-8
(Registration No. 333-19307), and incorporated herein by
reference)
10.9 Interstate Hotels Company Management Bonus Plan(3)
10.10 Interstate Hotels Company Stock Option Plan for Non-Employee
Directors(3)
10.11(a) Employment Agreement between the Company and Milton Fine(3)
10.11(b) Employment Agreement between the Company and W. Thomas
Parrington, Jr.(3)
10.11(c) Employment Agreement between the Company and J. William
Richardson(3)
10.11(d) Employment Agreement between the Company and Robert L.
Froman(3)
10.11(e) Employment Agreement between the Company and Marvin I.
Droz(3)
10.11(f) Employment Agreement between the Company and Thomas D.
Reese(2)
10.12 Form of Severance Agreement between the Company and each of
Milton Fine, W. Thomas Parrington, Jr., J. William
Richardson, Robert L. Froman and Marvin I. Droz(3)
10.13(a) Form of Indemnification Agreement between the Company and
each of its directors(3)
10.13(b) Amendment to Indemnification Agreement, dated as of December
2, 1997, between the Company and Milton Fine
10.14(a) Interstate Hotels Company Supplemental Deferred Compensation
Plan(3)
</TABLE>
<PAGE> 47
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
10.14(b) Deferred Compensation Agreement between the Company and W.
Thomas Parrington, Jr.(3)
10.14(c) Deferred Compensation Agreement between the Company and J.
William Richardson(3)
10.15(a) Contribution Agreement, dated as of October 4, 1996, as
amended, among Trust Leasing, Inc., Trust Management, Inc.,
Phillip H. McNeill, Sr., Crossroads/Memphis Company, L.L.C.
and Crossroads/Memphis Partnership, L.P.(2)
10.15(b) Master Agreement, dated as of November 4, 1996, as amended,
among Equity Inns Partnership, L.P., Interstate Hotels
Corporation, Equity Inns, Inc., Crossroads/Memphis
Partnership, L.P. and Crossroads Future Company, L.L.C.(2)
10.16(a) Contribution Agreement, dated as of December 19, 1996, among
Casa Marina Ltd., Casa Marina Realty Corporation, Interstone
Partners I, L.P. and Casa Marina Realty Partnership, L.P.(4)
10.16(b) Contribution Agreement and Agreement to Assign Partnership
Interests and Enter into First Amended and Restated Limited
Partnership Agreement, dated as of December 19, 1996, among
IHC Reach Corporation, Reach Resort Investment Corporation,
Interstone Partners I, L.P. and The Key West Reach Limited
Partnership(4)
10.17(a) Plan and Agreement of Merger, dated as of August 28, 1997,
by and between IHP Holdings Partnership, L.P. and Interstate
Hotels Partners, L.P.(5)
10.17(b) Form of Purchase and Sale Agreement and Assignment of
Limited Partnership Interest, dated as of August 28, 1997,
by and between IHP Investment Company, L.L.C. and eight (8)
separate limited partners(5)
10.17(c) Purchase and Sale Agreement and Assignment of Limited
Partnership Interest, dated as of August 28, 1997, by and
between IHP Investment Company, L.L.C. and SB/Interstate
General Partnership(5)
21.1 List of Subsidiaries of the Company
23.1 Consent of Coopers & Lybrand L.L.P.
24.1 Powers of Attorney executed by the Company, David J. Fine,
Milton Fine, R. Michael McCullough, W. Thomas Parrington,
Jr., J. William Richardson, Thomas J. Saylak and Steven J.
Smith
27.1 Financial Data Schedule
</TABLE>
- ---------
(1) Filed previously as an exhibit to the Company's Quarterly Report on Form
10-Q for the quarterly period ended June 30, 1996 and incorporated herein by
reference.
(2) Filed previously as an exhibit to the Company's Registration Statement on
Form S-1, as amended (Registration. No. 333-15507), and incorporated herein
by reference.
(3) Filed previously as an exhibit to the Company's Registration Statement on
Form S-1, as amended (Registration. No. 333-3958), and incorporated herein
by reference.
(4) Filed previously as an exhibit to the Company's Current Report on Form 8-K
dated December 27, 1996 and incorporated herein by reference.
(5) Filed previously as an exhibit to the Company's Current Report on Form 8-K
dated August 28, 1997 and incorporated herein by reference.
(b) Reports on Form 8-K
None.
<PAGE> 1
EXHIBIT 4.2(c)
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
among
INTERSTATE HOTELS COMPANY
INTERSTATE HOTELS CORPORATION
VARIOUS LENDING INSTITUTIONS
and
CREDIT LYONNAIS NEW YORK BRANCH
as
ADMINISTRATIVE AGENT
------------------------------------
Dated as of May 28, 1997
------------------------------------
$780,000,000
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 1. Amount and Terms of Credit................................................................ 1
1.01 Commitments............................................................................... 1
1.02 Minimum Borrowing Amounts, etc............................................................ 3
1.03 Notice of Borrowing....................................................................... 3
1.04 Disbursement of Funds..................................................................... 3
1.05 Notes..................................................................................... 4
1.06 Conversions............................................................................... 6
1.07 Pro Rata Borrowings....................................................................... 6
1.08 Interest.................................................................................. 7
1.09 Interest Periods.......................................................................... 7
1.10 Increased Costs, Illegality, etc.......................................................... 9
1.11 Compensation.............................................................................. 11
1.12 Change of Lending Office.................................................................. 12
SECTION 2. Letters of Credit......................................................................... 12
2.01 Letters of Credit......................................................................... 12
2.02 Letter of Credit Requests; Notices of Issuance............................................ 13
2.03 Agreement to Repay Letter of Credit Drawings.............................................. 13
2.04 Letter of Credit Participations........................................................... 14
2.05 Increased Costs........................................................................... 16
SECTION 3. Fees; Commitments......................................................................... 17
3.01 Fees ..................................................................................... 17
3.02 Voluntary Reduction of Commitments........................................................ 18
3.03 Mandatory Adjustments of Commitments, etc................................................. 18
SECTION 4. Payments.................................................................................. 19
4.01 Voluntary Prepayments..................................................................... 19
4.02 Mandatory Prepayments..................................................................... 19
4.03 Method and Place of Payment............................................................... 24
4.04 Net Payments.............................................................................. 24
SECTION 5. Conditions Precedent...................................................................... 26
5.01 Conditions Precedent to Restatement Effective Date........................................ 26
5.02 Conditions Precedent to All Credit Events................................................. 28
</TABLE>
(i)
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 6. Representations, Warranties and Agreements................................................ 29
6.01 Corporate Status.......................................................................... 29
6.02 Corporate Power and Authority............................................................. 29
6.03 No Violation.............................................................................. 29
6.04 Litigation................................................................................ 30
6.05 Use of Proceeds; Margin Regulations....................................................... 30
6.06 Governmental Approvals.................................................................... 30
6.07 True and Complete Disclosure.............................................................. 30
6.08 Financial Condition; Financial Statements................................................. 31
6.09 Security Interests........................................................................ 32
6.10 All Required Credit Documents............................................................. 32
6.11 Tax Returns and Payments.................................................................. 32
6.12 Compliance with ERISA..................................................................... 33
6.13 Subsidiaries.............................................................................. 34
6.14 Intellectual Property, etc................................................................ 34
6.15 Environmental Matters..................................................................... 34
6.16 Properties................................................................................ 35
6.17 Labor Relations; Collective Bargaining Agreements......................................... 35
6.18 Indebtedness.............................................................................. 35
6.19 Original Credit Agreement................................................................. 35
6.20 Certain Material Agreements............................................................... 36
6.21 Third-Party Rights........................................................................ 36
SECTION 7. Affirmative Covenants..................................................................... 36
7.01 Reporting Requirements.................................................................... 36
7.02 Books, Records and Inspections............................................................ 39
7.03 Insurance................................................................................. 39
7.04 Payment of Taxes.......................................................................... 40
7.05 Corporate Franchises...................................................................... 40
7.06 Compliance with Statutes, etc............................................................. 40
7.07 Good Repair............................................................................... 41
7.08 Compliance with Environmental Laws........................................................ 41
7.09 End of Fiscal Years; Fiscal Quarters...................................................... 42
7.10 Interest Rate Hedging..................................................................... 42
7.11 Additional Security; Further Assurances................................................... 42
7.12 Corporate Separateness.................................................................... 44
7.13 ERISA..................................................................................... 44
SECTION 8. Negative Covenants........................................................................ 45
8.01 Changes in Business....................................................................... 45
8.02 Consolidation, Merger or Sale of Assets, etc.............................................. 45
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
8.03 Liens.................................................................................... 48
8.04 Indebtedness............................................................................. 50
8.05 Advances, Investments and Loans.......................................................... 52
8.06 Capital Expenditures; Leases............................................................. 53
8.07 Prepayments of Indebtedness, Modifications of Agreements, etc............................ 53
8.08 Dividends, etc........................................................................... 54
8.09 Transactions with Affiliates............................................................. 54
8.10 Leverage Ratios.......................................................................... 55
8.11 Minimum EBITDA........................................................................... 56
8.12 Interest Coverage........................................................................ 56
8.13 Consolidated Net Worth................................................................... 56
8.14 Debt Service Coverage.................................................................... 57
8.15 Creation of Subsidiaries................................................................. 57
8.16 Limitation on Certain Restrictions on Subsidiaries....................................... 57
8.17 Holdings................................................................................. 58
8.18 Special Restrictions..................................................................... 58
SECTION 9. Events of Default........................................................................ 58
9.01 Payments................................................................................. 59
9.02 Representations, etc..................................................................... 59
9.03 Covenants................................................................................ 59
9.04 Default Under Other Agreements........................................................... 59
9.05 Bankruptcy, etc.......................................................................... 59
9.06 ERISA.................................................................................... 60
9.07 Security Documents....................................................................... 61
9.08 Judgments................................................................................ 61
9.09 Environmental Matters.................................................................... 61
9.10 Guaranty................................................................................. 61
SECTION 10. Definitions.............................................................................. 62
SECTION 11. The Administrative Agent................................................................. 88
11.01 Appointment.............................................................................. 88
11.02 Delegation of Duties..................................................................... 89
11.03 Exculpatory Provisions................................................................... 89
11.04 Reliance by Administrative Agent......................................................... 90
11.05 Notice of Default........................................................................ 90
11.06 Non-Reliance............................................................................. 90
11.07 Indemnification.......................................................................... 91
11.08 The Administrative Agent in Individual Capacity.......................................... 91
11.09 Successor Administrative Agent........................................................... 92
</TABLE>
(iii)
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 12. Miscellaneous............................................................................ 92
12.01 Payment of Expenses, etc................................................................. 92
12.02 Right of Setoff.......................................................................... 93
12.03 Notices.................................................................................. 94
12.04 Benefit of Agreement..................................................................... 94
12.05 No Waiver; Remedies Cumulative........................................................... 96
12.06 Payments Pro Rata........................................................................ 96
12.07 Calculations; Computations............................................................... 97
12.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of
Jury Trial.......................................................................... 97
12.09 Counterparts............................................................................. 99
12.10 Headings Descriptive..................................................................... 99
12.11 Amendment or Waiver...................................................................... 99
12.12 Survival................................................................................. 99
12.13 Domicile of Loans........................................................................100
12.14 Confidentiality..........................................................................100
12.15 Bank Register............................................................................100
12.16 Interest.................................................................................101
SECTION 13. Guaranty.................................................................................102
13.01 The Guaranty.............................................................................102
13.02 Bankruptcy...............................................................................103
13.03 Nature of Liability......................................................................103
13.04 Independent Obligation...................................................................103
13.05 Authorization............................................................................104
13.06 Reliance.................................................................................104
13.07 Subordination............................................................................104
13.08 Waiver...................................................................................104
13.09 Limitation on Enforcement................................................................105
</TABLE>
ANNEX I -- Commitments
ANNEX II -- Bank Addresses
EXHIBIT A-1 -- Form of Notice of Borrowing
EXHIBIT A-2 -- Form of Letter of Credit Request
EXHIBIT B-1 -- Form of Term A Note
EXHIBIT B-2 -- Form of Term B Note
EXHIBIT B-3 -- Form of Term C Note
EXHIBIT B-4 -- Form of Revolving Note
(iv)
<PAGE> 6
<TABLE>
<S> <C>
EXHIBIT C-1 -- Form of Opinion of Jones, Day, Reavis & Pogue Special
Counsel to Holdings and its Subsidiaries
EXHIBIT C-2 -- Form of Opinion of General Counsel to Borrower
EXHIBIT C-3 -- Form of Opinion of White & Case, Special Counsel to the
Banks
EXHIBIT D -- Form of Officers' Certificate
EXHIBIT E -- Form of Subsidiary Guaranty
EXHIBIT F -- Form of Pledge Agreement
EXHIBIT G -- Form of Security Agreement
EXHIBIT H -- Form of Acknowledgement
EXHIBIT I -- Form of Solvency Certificate
EXHIBIT J -- Form of Assignment Agreement
EXHIBIT K -- Form of Section 4.04(b)(ii) Certificate
</TABLE>
(v)
<PAGE> 7
AMENDMENT AND RESTATEMENT dated as of May 28, 1997 to CREDIT
AGREEMENT dated as of June 25, 1996, among INTERSTATE HOTELS COMPANY
("Holdings"), a Pennsylvania corporation, INTERSTATE HOTELS CORPORATION (the
"Borrower"), a Pennsylvania corporation, the lending institutions listed from
time to time on Annex I hereto (each a "Bank" and, collectively, the "Banks")
and CREDIT LYONNAIS NEW YORK BRANCH, as administrative agent (the
"Administrative Agent"). Unless otherwise defined herein, all capitalized terms
used herein and defined in Section 10 are used herein as so defined.
W I T N E S S E T H :
WHEREAS, Holdings, the Borrower and certain financial
institutions are parties to a Credit Agreement, dated as of June 25, 1996 (as
the same has been amended, modified or supplemented prior to the date hereof,
the "Original Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the
Original Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree that the Original
Credit Agreement shall be and hereby is amended and restated in its entirety as
follows;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 COMMITMENTS. Subject to and upon the terms and conditions
herein set forth, each Bank severally agrees to continue and/or make a loan or
loans (each a "Loan" and, collectively, the "Loans") to the Borrower, which
Loans shall be drawn, to the extent such Bank has a commitment under such
Facility, under the Term A Facility, the Term B Facility, the Term C Facility or
the Revolving Facility, as set forth below:
(a) Loans under the Term A Facility (each a "Term A Loan" and,
collectively, the "Term A Loans"): (i) shall be continued outstanding
on the Restatement Effective Date pursuant to a single Borrowing
participated in by each Bank with a Term A Commitment in the amount of
such Commitment; and (ii) except as hereinafter provided, may, at the
option of the Borrower, be maintained as, and/or converted into, Base
Rate Loans or Eurodollar Loans, PROVIDED that all Term A Loans made by
all Banks pursuant to the same Borrowing shall, unless
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<PAGE> 8
otherwise specifically provided herein, consist entirely of Term A
Loans of the same Type. Once repaid, Term A Loans may not be
reborrowed.
(b) Loans under the Term B Facility (each a "Term B Loan" and,
collectively, the "Term B Loans"): (i) shall be continued outstanding
on the Restatement Effective Date pursuant to a single Borrowing
participated in by each Bank with a Term B Commitment in the amount of
such Commitment; and (ii) except as hereinafter provided, may, at the
option of the Borrower, be maintained as, and/or converted into, Base
Rate Loans or Eurodollar Loans, PROVIDED that all Term B Loans made by
all Banks pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Term B Loans of the
same Type. Once repaid, Term B Loans may not be reborrowed.
(c) Loans under the Term C Facility (each a "Term C Loan" and,
collectively, the "Term C Loans"): (i) shall be made pursuant to a
single Borrowing on the Restatement Effective Date; (ii) except as
hereinafter provided, may, at the option of the Borrower, be incurred
and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, PROVIDED that all Term C Loans made by all Banks pursuant to the
same Borrowing shall, unless otherwise specifically provided herein,
consist entirely of Term C Loans of the same Type; and (iii) shall not
exceed in initial aggregate principal amount for any Bank the Term C
Commitment, if any, of such Bank as in effect on the Restatement
Effective Date. Once repaid, Term C Loans may not be reborrowed.
(d) Loans under the Revolving Facility (each a "Revolving
Loan" and, collectively, the "Revolving Loans"): (i) may be made at any
time and from time to time on and after the Restatement Effective Date
and prior to the RF Maturity Date; (ii) except as hereinafter provided,
may, at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or Eurodollar Loans, PROVIDED
that (x) all Revolving Loans outstanding on the Restatement Effective
Date (after giving effect to the repayment of Revolving Loans provided
for in Section 5.01(f)) shall be continued outstanding pursuant to a
single Borrowing participated in by all Banks with a Revolving
Commitment PRO RATA among same in an aggregate amount equal to the
outstanding principal amount of such remaining Revolving Loans and (y)
all Revolving Loans made as part of the same Borrowing shall, unless
otherwise specifically provided herein, consist of Revolving Loans of
the same Type; (iii) may be repaid and reborrowed in accordance with
the provisions hereof; and (iv) shall not exceed for any Bank at any
time outstanding that aggregate principal amount which, when added to
the product at such time of (x) such Bank's RF Percentage and (y) the
sum of the Letter of Credit Outstandings, equals the Revolving
Commitment of such Bank at such time. In addition the
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<PAGE> 9
aggregate outstanding principal amount of all Acquisition Loans for all
Banks at any time shall not exceed the Acquisition Sublimit at such
time.
1.02 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal
amount of each Borrowing shall not be less than the Minimum Borrowing Amount for
such Borrowing. More than one Borrowing may be incurred on any day, PROVIDED
that at no time shall there be outstanding more than 12 Borrowings of Eurodollar
Loans.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to
incur Term Loans or Revolving Loans, it shall give the Administrative Agent at
its Notice Office, (x) prior to 1:00 P.M. (New York time), at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Eurodollar Loans ([one] Business Day's in the case
of any Borrowing of Loans on the Restatement Effective Date) and (y) prior to
10:00 A.M. (New York time) on the proposed date thereof written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of Base Rate
Loans to be made hereunder. Each such notice (each such notice, a "Notice of
Borrowing") (or the written confirmation) shall be in the form of Exhibit A-1
and (y) shall be irrevocable and shall specify: (i) the Facility pursuant to
which such Borrowing is being made; (ii) the aggregate principal amount of the
Loans to be made pursuant to such Borrowing; (iii) the date of Borrowing (which
shall be a Business Day); and (iv) whether the respective Borrowing shall
consist of Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Administrative Agent
shall promptly give each Bank written notice (or telephonic notice promptly
confirmed in writing) of each proposed Borrowing, of such Bank's proportionate
share thereof and of the other matters covered by the Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent may act prior to receipt of written confirmation without
liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of the
Borrower entitled to give telephonic notices under this Agreement on behalf of
the Borrower. In each such case, the Administrative Agent's record of the terms
of such telephonic notice shall be conclusive absent manifest error.
1.04 DISBURSEMENT OF FUNDS. (a) No later than 1:00 P.M. (New
York time) on the date specified in each Notice of Borrowing, each Bank will
make available its PRO RATA share, if any, of each Borrowing requested to be
made on such date in the manner provided below provided that, in the case of
Borrowings of Term A Loans, Term B Loans and Revolving Loans on the Restatement
Effective Date, each Bank shall only be obligated to make available the excess,
if any, of the Loans under each of such Facilities it is obligated to make on
the Restatement Effective Date over the outstanding principal amount of the
Loans under each such Facility held by such Bank immediately prior to such
-3-
<PAGE> 10
Borrowings with the amount so funded under such facilities to be paid to those
Banks whose total obligations to fund such Borrowings on the Restatement
Effective Date are less than the aggregate outstanding principal amount of all
of its Loans under such Facilities immediately prior to the Restatement
Effective Date PRO RATA among same on the basis of their respective shortfalls.
All amounts shall be made available to the Administrative Agent in U.S. dollars
and immediately available funds at the Payment Office and the Administrative
Agent promptly will make available to the Borrower by depositing to its account
at the Payment Office the aggregate of the amounts so made available in the type
of funds received. Unless the Administrative Agent shall have been notified by
any Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without any obligation to do so) make available to
the Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Bank and the Administrative
Agent has made available same to the Borrower, the Administrative Agent shall be
entitled to recover such corresponding amount from such Bank. If such Bank does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the Borrower,
and the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
from such Bank or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (x) if paid by such Bank, the overnight Federal Funds
Effective Rate or (y) if paid by the Borrower, the then applicable rate of
interest, calculated in accordance with Section 1.08, for the respective Loans.
(b) Nothing herein and no subsequent termination of the
Commitments pursuant to Section 3.02 or 3.03 shall be deemed to relieve any Bank
from its obligation to fulfill its commitments hereunder and in existence from
time to time or to prejudice any rights which the Borrower may have against any
Bank as a result of any default by such Bank hereunder.
1.05 NOTES. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made to it by each Bank shall be evidenced: (i)
if Term A Loans, by a promissory note substantially in the form of Exhibit B-1
with blanks appropriately completed in conformity herewith (each a "Term A Note"
and, collectively, the "Term A Notes"); (ii) if Term B Loans, by a promissory
note substantially in the form of Exhibit B-2 with blanks appropriately
completed in conformity herewith (each a "Term B Note" and, collectively, the
"Term B Notes"); (iii) if Term C Loans, by a promissory note substantially
-4-
<PAGE> 11
in the form of Exhibit B-3 with blanks appropriately completed in conformity
herewith (each a "Term C Note" and, collectively, the "Term C Notes"); and (iv)
if Revolving Loans, by a promissory note substantially in the form of Exhibit
B-4 with blanks appropriately completed in conformity herewith (each a
"Revolving Note" and, collectively, the "Revolving Notes").
(b) The Term A Note issued to a Bank shall: (i) be executed by
the Borrower; (ii) be payable to the order of such Bank and be dated the
Restatement Effective Date; (iii) be in a stated principal amount equal to the
Term A Commitment of such Bank on the Restatement Effective Date (or in the case
of a new Note issued pursuant to Section 12.04, the Term A Loans evidenced
thereby at the time of issuance) and be payable in the principal amount of Term
A Loans evidenced thereby; (iv) mature on the TF Maturity Date; (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby;
(vi) be subject to mandatory repayment as provided in Section 4.02; and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) The Term B Note issued to a Bank shall: (i) be executed by
the Borrower; (ii) be payable to the order of such Bank and be dated the
Restatement Effective Date; (iii) be in a stated principal amount equal to the
Term B Commitment of such Bank on the Restatement Effective Date (or in the case
of a new Note issued pursuant to Section 12.04, the Term B Loans evidenced
thereby at the time of issuance) and be payable in the principal amount of Term
B Loans evidenced thereby; (iv) mature on the TF Maturity Date; (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby;
(vi) be subject to mandatory repayment as provided in Section 4.02; and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) The Term C Note issued to a Bank shall: (i) be executed by
the Borrower; (ii) be payable to the order of such Bank and be dated the
Restatement Effective Date; (iii) be in a stated principal amount equal to the
Term C Commitment of such Bank on the Restatement Effective Date (or in the case
of a new Note issued pursuant to Section 12.04, the Term C Loans evidenced
thereby at the time of issuance) and be payable in the principal amount of Term
C Loans evidenced thereby; (iv) mature on the C Maturity Date; (v) bear interest
as provided in the appropriate clause of Section 1.08 in respect of the Base
Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby; (vi) be
subject to mandatory repayment as provided in Section 4.02; and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(e) The Revolving Note issued to a Bank shall: (i) be executed
by the Borrower; (ii) be payable to the order of such Bank and be dated the
Restatement Effective Date; (iii) be in a stated principal amount equal to the
Revolving Commitment of such Bank
-5-
<PAGE> 12
on the Restatement Effective Date and be payable in the principal amount of
Revolving Loans evidenced thereby; (iv) mature on the RF Maturity Date; (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby;
(vi) be subject to mandatory repayment as provided in Section 4.02; and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(f) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will, prior to any
transfer of its Note, endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in any such notation shall not affect the Borrower's obligations in
respect of such Loans.
1.06 CONVERSIONS. The Borrower shall have the option to
convert on any Business Day all or a portion at least equal to the applicable
Minimum Borrowing Amount of the outstanding principal amount of the Loans owing
pursuant to a single Facility into a Borrowing or Borrowings pursuant to such
Facility of the other Type of Loan, PROVIDED that: (i) no partial conversion of
a Borrowing of Eurodollar Loans shall reduce the outstanding principal amount of
the Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto; (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no Default under Section 9.01 or Event of Default is in
existence on the date of the conversion unless the Required Banks otherwise
agree; and (iii) Borrowings of Eurodollar Loans resulting from this Section 1.06
shall be limited in numbers as provided in Section 1.02. Each such conversion
shall be effected by the Borrower giving the Administrative Agent at its Notice
Office, prior to 1:00 P.M. (New York time), at least three Business Days' (or
one Business Day's, in the case of a conversion into Base Rate Loans) prior
written notice (or telephonic notice promptly confirmed in writing) (each a
"Notice of Conversion") specifying the Loans to be so converted, the Type of
Loans to be converted into and, if to be converted into a Borrowing of
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 PRO RATA BORROWINGS. All incurrences of Term A Loans,
Term B Loans, Term C Loans or Revolving Loans shall be made by the Banks PRO
RATA on the basis of their Term A Commitments, Term B Commitments, Term C
Commitments or Revolving Commitments, as the case may be. It is understood that
no Bank shall be responsible for any default by any other Bank in its obligation
to make Loans hereunder and that each Bank shall be obligated to make the Loans
provided to be made by it hereunder, regardless of the failure of any other Bank
to fulfill its commitments hereunder.
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<PAGE> 13
1.08 INTEREST. (a) The unpaid principal amount of each Base
Rate Loan shall bear interest from the date of the Borrowing thereof until
maturity (whether by acceleration or otherwise) at a rate per annum which shall
at all times be the Applicable Base Rate Margin plus the Base Rate in effect
from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the
Applicable Eurodollar Margin plus the relevant Eurodollar Rate.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall bear interest at a rate per annum
equal to the Base Rate in effect from time to time plus the sum of (i) 2% and
(ii) the Applicable Base Rate Margin then in effect for the applicable Loans,
PROVIDED that each Eurodollar Loan shall bear interest after maturity (whether
by acceleration or otherwise) until the end of the Interest Period then
applicable thereto at a rate per annum equal to 2% in excess of the rate of
interest applicable thereto at maturity.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, monthly in arrears on the last
Business Day of each calendar month, (ii) in respect of each Eurodollar Loan, on
the last day of each Interest Period applicable thereto and, in the case of an
Interest Period in excess of three months, on the dates which are successively
three months after the commencement of such Interest Period and (iii) in respect
of each Loan, on any prepayment or conversion (on the amount prepaid or
converted), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest
rate for any Borrowing of Eurodollar Loans for any Interest Period, shall
promptly notify the Borrower and the Banks thereof.
1.09 INTEREST PERIODS. (a) At the time the Borrower gives a
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, a Borrowing of Eurodollar Loans (in the case of the initial
Interest Period applicable thereto) or prior to 1:00 P.M. (New York time) on the
third Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of the Interest Period applicable to such Borrowing, which Interest
-7-
<PAGE> 14
Period shall, at the option of the Borrower, be a one, two, three or six month
period provided that the Interest Period applicable to all Borrowings of
Eurodollar Loans made on the Restatement Effective Date shall expire on June 26,
1997. Notwithstanding anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of Base Rate
Loans) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(ii) if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, PROVIDED that if any Interest Period
would otherwise expire on a day which is not a Business Day but is a
day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business
Day;
(iv) no Interest Period with respect to any Borrowing of
Revolving Loans may (x) extend beyond any date upon which a Scheduled
RF Reduction is required to be made if after giving effect to the
selection of such Interest Period, the sum of (I) the aggregate
principal amount of Revolving Loans maintained as Eurodollar Loans with
Interest Periods ending after such date plus (II) Letter of Credit
Outstandings under Letters of Credit with expiry dates beyond such date
would exceed the Total Revolving Commitment after giving effect to such
reduction or (y) extend beyond the RF Maturity Date;
(v) no Interest Period with respect to any Borrowing of Term
Loans under any Term Facility may (x) extend beyond any date upon which
a Scheduled Repayment is required to be made in respect of such Term
Loans if, after giving effect to the selection of such Interest Period,
the aggregate principal amount of such Term Loans maintained as
Eurodollar Loans with Interest Periods ending after such date would
exceed the aggregate principal amount of such Term Loans permitted to
be outstanding after such Scheduled Repayment or (y) extend beyond the
TF Maturity Date (the C Maturity Date in the case of Term C Loans); and
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<PAGE> 15
(vi) no Interest Period may be elected at any time when a
Default under Section 9.01 or an Event of Default is then in existence
unless the Required Banks otherwise agree.
(b) If upon the expiration of any Interest Period the Borrower
has failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the Borrower shall
be deemed to have elected to convert such Borrowing into a Borrowing of Base
Rate Loans effective as of the expiration date of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that
(x) in the case of clause (i) below, the Administrative Agent or (y) in the case
of clauses (ii) and (iii) below, any Bank shall have determined on a reasonable
basis (which determination shall, absent manifest error, be final and conclusive
and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period that, by reason of any changes arising after the
Original Effective Date affecting the interbank Eurodollar market,
adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar
Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder in an amount
which such Bank deems material with respect to any Eurodollar Loans
(other than any increased cost or reduction in the amount received or
receivable resulting from the imposition of or a change in the rate of
taxes or similar charges) because of (x) any change since the Original
Effective Date in any applicable law, governmental rule, regulation,
guideline, order or request (whether or not having the force of law),
or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation,
guideline, order or request (such as, for example, but not limited to,
a change in official reserve requirements, but, in all events,
excluding reserves includable in the Eurodollar Rate pursuant to the
definition thereof) and/or (y) other circumstances adversely affecting
the interbank Eurodollar market or the position of such Bank in such
market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has become unlawful by compliance by such Bank in good
faith with any change since the Original Effective Date in any law,
governmental rule, regulation, guideline or order, or the
interpretation or application thereof, or would conflict with any
thereof not having the force of law but with which such Bank
customarily complies;
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<PAGE> 16
then, and in any such event, such Bank (or the Administrative Agent in the case
of clause (i) above) shall (x) on such date and (y) within 10 Business Days of
the date on which such event no longer exists give notice (by telephone
confirmed in writing) to the Borrower and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Banks). Thereafter (x) in the case of clause (i) above,
Eurodollar Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrower and the Banks that the circumstances
giving rise to such notice by the Administrative Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion given by the Borrower with respect
to Eurodollar Loans which have not yet been incurred shall be deemed rescinded
by the Borrower or, in the case of a Notice of Borrowing, shall, at the option
of the Borrower, be deemed converted into a Notice of Borrowing for Base Rate
Loans to be made on the date of Borrowing contained in such Notice of Borrowing,
(y) in the case of clause (ii) above, the Borrower shall pay to such Bank, upon
written demand therefor, such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Bank shall determine) as shall be required to compensate such Bank for such
increased costs or reductions in amounts receivable hereunder (a written notice
as to the additional amounts owed to such Bank, showing the basis for the
calculation thereof, which basis must be reasonable, submitted to the Borrower
by such Bank shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii) the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, by giving the Administrative Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that the Borrower was
notified by a Bank pursuant to Section 1.10(a)(ii) or (iii), cancel said
Borrowing, convert the related Notice of Borrowing into one requesting a
Borrowing of Base Rate Loans or require the affected Bank to make its requested
Loan as a Base Rate Loan, or (ii) if the affected Eurodollar Loan is then
outstanding, upon at least one Business Day's notice to the Administrative
Agent, require the affected Bank to convert each such Eurodollar Loan into a
Base Rate Loan, PROVIDED that if more than one Bank is affected at any time,
then all affected Banks must be treated the same pursuant to this Section
1.10(b).
(c) If any Bank shall have determined that after the Original
Effective Date, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged by law with the interpretation or administration thereof, or
compliance by such Bank or its parent corporation with any request or directive
regarding capital adequacy (whether or not having the force
-10-
<PAGE> 17
of law) of any such authority, central bank or comparable agency, in each case
made subsequent to the Original Effective Date, has or would have the effect of
reducing by an amount reasonably deemed by such Bank to be material the rate of
return on such Bank's or its parent corporation's capital or assets as a
consequence of such Bank's commitments or obligations hereunder to a level below
that which such Bank or its parent corporation could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Bank's or its parent corporation's policies with respect to capital adequacy),
then from time to time, within 15 days after demand by such Bank (with a copy to
the Administrative Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank or its parent corporation for
such reduction. Each Bank, upon determining in good faith that any additional
amounts will be payable pursuant to this Section 1.10(c), will give prompt
written notice thereof to the Borrower, which notice shall set forth the basis
of the calculation of such additional amounts, which basis must be reasonable,
although the failure to give any such notice shall not release or diminish any
of the Borrower's obligations to pay additional amounts pursuant to this Section
1.10(c) upon the subsequent receipt of such notice. No Bank shall demand
compensation for any reduction referred to in this Section 1.10(c) if it shall
not at the time be the general policy or practice of such Bank to demand such
compensation in similar circumstances under comparable provisions of other
credit agreements.
(d) Notwithstanding anything in this Agreement to the
contrary, no Bank shall be entitled to compensation under Section 1.10, 2.05 or
4.04 for any amounts incurred or accruing more than 180 days prior to the giving
of notice to the Borrower of additional costs of the type described in such
Sections.
1.11 COMPENSATION. The Borrower shall compensate each Bank,
upon its written request (which request shall set forth the detailed basis for
requesting and the method of calculating such compensation), for all reasonable
losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment of
deposits or other funds required by such Bank to fund its Eurodollar Loans)
which such Bank may sustain: (i) if for any reason (other than a default by such
Bank or the Administrative Agent) a Borrowing of Eurodollar Loans does not occur
on a date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any repayment or conversion of any of its Eurodollar
Loans occurs on a date which is not the last day of an Interest Period
applicable thereto; (iii) if any prepayment of any of its Eurodollar Loans is
not made on any date specified in a notice of prepayment given by the Borrower;
or (iv) as a consequence of (x) any other default by the Borrower to repay its
Eurodollar Loans when required by the terms of this Agreement or (y) an election
made pursuant to Section 1.10(b).
-11-
<PAGE> 18
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.05 or 4.04 with respect to such Bank, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office for any Loans or Commitments
affected by such event, PROVIDED that such designation is made on such terms
that such Bank and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 1.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Bank provided in Section 1.10, 2.05 or 4.04.
SECTION 2. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request a Letter of Credit Issuer
at any time and from time to time on or after the Restatement Effective Date and
prior to the RF Maturity Date to issue, for the account of the Borrower and in
support of (x) trade obligations, workmen's compensation and other obligations
of the Borrower or any Subsidiary (other than a Specified Subsidiary) incurred
in the ordinary course of its business and/or (y) such other obligations of the
Borrower or any Subsidiary (other than a Specified Subsidiary) to any other
Person that are acceptable to the Administrative Agent and such Letter of Credit
Issuer, and subject to and upon the terms and conditions herein set forth such
Letter of Credit Issuer agrees to issue from time to time, irrevocable letters
of credit in such form as may be approved by such Letter of Credit Issuer and
the Administrative Agent (each such letter of credit, and each Existing Letter
of Credit described in Section 2.01(d), a "Letter of Credit" and collectively,
the "Letters of Credit").
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings at such time, would exceed either (x) $5,000,000 or (y) when added
to the aggregate principal amount of all Revolving Loans then outstanding, an
amount equal to the Total Revolving Commitment at such time and (ii) each Letter
of Credit shall have an expiry date occurring not later than one year after such
Letter of Credit's date of issuance, although any Letter of Credit may be
renewable for successive periods of up to 12 months, but not beyond the Business
Day next preceding the RF Maturity Date, on terms acceptable to the
Administrative Agent and the relevant Letter of Credit Issuer.
(c) Notwithstanding the foregoing, in the event a Bank Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless such Letter of Credit Issuer has entered into arrangements
satisfactory to it and the Borrower to eliminate such Letter of Credit Issuer's
risk with respect to the participation in Letters of Credit of
-12-
<PAGE> 19
the Defaulting Bank or Banks, including by cash collateralizing such Defaulting
Bank's or Banks' RF Percentage of the Letter of Credit Outstandings.
(d) Annex VIII hereto contains a description of all Letters of
Credit under and as defined in the Original Credit Agreement outstanding on, and
to continue in effect after, the Restatement Effective Date. Each such Letter of
Credit (each, an "Existing Letter of Credit") shall constitute a "Letter of
Credit" for all purposes of this Agreement, issued, for purposes of Section
2.04(a), on the Restatement Effective Date, and the Borrower, the Administrative
Agent and the Banks hereby agree that, from and after such date, the terms of
this Agreement shall apply to such Letters of Credit, superseding any other
agreement theretofore applicable to them.
2.02 LETTER OF CREDIT REQUESTS; NOTICES OF ISSUANCE. (a)
Whenever it desires that a Letter of Credit be issued, the Borrower shall give
the Administrative Agent and the Letter of Credit Issuer written notice
(including by way of telecopier) in the form of Exhibit A-2 thereof prior to
1:00 P.M. (New York time) at least five Business Days (or such shorter period as
may be acceptable to the relevant Letter of Credit Issuer) prior to the proposed
date of issuance (which shall be a Business Day) (each a "Letter of Credit
Request"), which Letter of Credit Request shall include an application for such
Letter of Credit and any other documents that such Letter of Credit Issuer
customarily requires in connection therewith. The Administrative Agent shall
promptly notify each Bank of each Letter of Credit Request.
(b) Each Letter of Credit Issuer shall, on the date of each
issuance of a Letter of Credit by it, give the Administrative Agent, each Bank
and the Borrower written notice of the issuance of such Letter of Credit,
accompanied by a copy to the Administrative Agent of the Letter of Credit or
Letters of Credit issued by it. Each Letter of Credit Issuer shall provide to
the Administrative Agent a monthly summary describing each Letter of Credit
issued by such Letter of Credit Issuer and then outstanding.
2.03 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The
Borrower hereby agrees to reimburse each Letter of Credit Issuer, by making
payment to the Administrative Agent in immediately available funds at the
Payment Office, for any payment or disbursement made by such Letter of Credit
Issuer under any Letter of Credit (each such amount so paid or disbursed until
reimbursed, an "Unpaid Drawing") immediately after, and in any event on the date
on which, such Letter of Credit Issuer notifies the Administrative Agent and the
Borrower of such payment or disbursement (which notice to the Borrower shall be
delivered reasonably promptly after any such payment or disbursement), with
interest on the amount so paid or disbursed by such Letter of Credit Issuer, to
the extent not reimbursed prior to 1:00 P.M. (New York time) on the date of such
payment or disbursement, from and including the date paid or disbursed to but
not including the date such Letter of Credit Issuer is reimbursed therefor at a
rate per annum which shall be the
-13-
<PAGE> 20
rate then applicable to Base Rate Loans (plus an additional 2% per annum if not
reimbursed by the third Business Day after the date of such payment or
disbursement), such interest also to be payable on demand.
(b) The Borrower's obligation under this Section 2.03 to
reimburse each Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower may have or have had against such Letter
of Credit Issuer, the Administrative Agent, any other Letter of Credit Issuer or
any Bank, including, without limitation, any defense based upon the failure of
any drawing under a Letter of Credit to conform to the terms of the Letter of
Credit or any non-application or misapplication by the beneficiary of the
proceeds of such drawing, PROVIDED, HOWEVER, that the Borrower shall not be
obligated to reimburse a Letter of Credit Issuer for any wrongful payment made
by such Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such Letter of Credit Issuer.
2.04 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by a Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each Bank with a
Revolving Commitment, and each Bank (each a "Participant") shall be deemed
irrevocably and unconditionally to have purchased and received from such Letter
of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Bank's RF Percentage, in such Letter of
Credit, each substitute letter of credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto (although
Letter of Credit Fees shall be payable directly to the Administrative Agent for
the account of the Banks as provided in Section 3.01(b) and the Participants
shall have no right to receive any portion of any Facing Fees) and any security
therefor or guaranty pertaining thereto. Upon any change in the Revolving
Commitments of the Banks pursuant to Section 12.04(b), it is hereby agreed that,
with respect to all outstanding Letters of Credit and Unpaid Drawings, there
shall be an automatic adjustment to the participations pursuant to this Section
2.04 to reflect the new RF Percentages of the assigning and assignee Bank.
(b) In determining whether to pay under any Letter of Credit,
a Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by a Letter of Credit Issuer under or in connection with
any Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for such Letter of Credit Issuer any
resulting liability.
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<PAGE> 21
(c) In the event that a Letter of Credit Issuer makes any
payment under any Letter of Credit and the Borrower shall not have reimbursed
such amount in full to such Letter of Credit Issuer pursuant to Section 2.03(a),
such Letter of Credit Issuer shall promptly notify the Administrative Agent, and
the Administrative Agent shall promptly notify each Participant of such failure,
and each Participant shall promptly and unconditionally pay to the
Administrative Agent for the account of such Letter of Credit Issuer, the amount
of such Participant's RF Percentage of such payment in U.S. dollars and in same
day funds, PROVIDED, HOWEVER, that no Participant shall be obligated to pay to
the Administrative Agent its RF Percentage of such unreimbursed amount for any
wrongful payment made by such Letter of Credit Issuer under a Letter of Credit
as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of such Letter of Credit Issuer. If the Administrative
Agent so notifies any Participant required to fund a payment under a Letter of
Credit prior to 11:00 A.M. (New York time) on any Business Day, such Participant
shall make available to the Administrative Agent for the account of the relevant
Letter of Credit Issuer such RF's Revolving Percentage of the amount of such
payment on such Business Day in same day funds. If and to the extent such
Participant shall not have so made its RF Percentage of the amount of such
payment available to the Administrative Agent for the account of the relevant
Letter of Credit Issuer, such Participant agrees to pay to the Administrative
Agent for the account of such Letter of Credit Issuer, forthwith on demand such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to the Administrative Agent for the account of such
Letter of Credit Issuer at the Federal Funds Effective Rate. The failure of any
Participant to make available to the Administrative Agent for the account of the
relevant Letter of Credit Issuer its RF Percentage of any payment under any
Letter of Credit shall not relieve any other Participant of its obligation
hereunder to make available to the Administrative Agent for the account of such
Letter of Credit Issuer its RF Percentage of any payment under any Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to the
Administrative Agent for the account of such Letter of Credit Issuer such other
Participant's RF Percentage of any such payment.
(d) Whenever a Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its RF Percentage thereof, in U.S. dollars and in
same day funds, an amount equal to such Participant's RF Percentage of the
principal amount thereof and interest thereon accruing after the purchase of the
respective participations.
(e) The obligations of the Participants to make payments to
the Administrative Agent for the account of each Letter of Credit Issuer with
respect to Letters
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<PAGE> 22
of Credit shall be irrevocable and not subject to counterclaim, set-off or other
defense or any other qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or
any Person for whom any such transferee may be acting), the
Administrative Agent, any Letter of Credit Issuer, any Bank, or other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 INCREASED COSTS. If after the Original Effective Date,
the adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Letter of Credit
Issuer or any Bank with any request or directive (whether or not having the
force of law) by any such authority, central bank or comparable agency (in each
case made subsequent to the Original Effective Date) shall either (i) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against Letters of Credit issued by such Letter of Credit Issuer or
such Bank's participation therein, or (ii) shall impose on such Letter of Credit
Issuer or any Bank any other conditions affecting this Agreement, any Letter of
Credit or such Bank's participation therein; and the result of any of the
foregoing is to increase the cost to such Letter of Credit Issuer or such Bank
of issuing, maintaining or participating in any Letter of Credit, or to reduce
the amount of any sum received or receivable by such Letter of Credit Issuer or
such Bank hereunder (other than any increased cost or reduction in the amount
received or receivable resulting from the imposition of or a change in the rate
of taxes or similar charges), then,
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<PAGE> 23
upon demand to the Borrower by such Letter of Credit Issuer or such Bank (a copy
of which notice shall be sent by such Letter of Credit Issuer or such Bank to
the Administrative Agent), the Borrower shall pay to such Letter of Credit
Issuer or such Bank such additional amount or amounts as will compensate any
such Letter of Credit Issuer or such Bank for such increased cost or reduction.
A certificate submitted to the Borrower by any Letter of Credit Issuer or any
Bank, as the case may be (a copy of which certificate shall be sent by such
Letter of Credit Issuer or such Bank to the Administrative Agent), setting forth
the basis for the determination of such additional amount or amounts necessary
to compensate any Letter of Credit Issuer or such Bank as aforesaid shall be
conclusive and binding on the Borrower absent manifest error, although the
failure to deliver any such certificate shall not release or diminish any of the
Borrower's obligations to pay additional amounts pursuant to this Section 2.05.
SECTION 3. FEES; COMMITMENTS.
3.01 FEES. (a) The Borrower agrees to pay to the
Administrative Agent a Commitment Commission ("Commitment Commission") for the
account of each Non-Defaulting Bank for the period from and including the
Restatement Effective Date to but not including the date the Total Revolving
Commitment has been terminated, computed for each day at a rate equal to the
Applicable CC Percentage per annum on the Unutilized Revolving Commitment on
such date of such Bank. Such Commitment Commission shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December after the Restatement Effective Date and on the date upon which the
Total Revolving Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent,
for the account of each Non-Defaulting Bank, PRO RATA on the basis of its RF
Percentage, a fee in respect of each Letter of Credit (the "Letter of Credit
Fee") computed for each day on and after the Restatement Effective Date at a
rate equal to the Applicable Eurodollar Margin (Revolving Loans) per annum on
the Stated Amount of such Letter of Credit on such date. Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears on the last Business
Day of each March, June, September and December after the Restatement Effective
Date and on the date upon which the Total Revolving Commitment is terminated.
(c) The Borrower agrees to pay to the Administrative Agent for
the account of each Letter of Credit Issuer a fee in respect of each Letter of
Credit issued by it (the "Facing Fee") computed at the rate of 1/4 of 1% per
annum on the average daily Stated Amount of such Letter of Credit on and after
the Restatement Effective Date. Accrued Facing Fees shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December after the Restatement Effective Date and on the date upon which the
Total Revolving Commitment is terminated.
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<PAGE> 24
(d) The Borrower agrees to pay directly to each Letter of
Credit Issuer upon each issuance of, drawing under, and/or amendment of, a
Letter of Credit issued by it such amount as shall at the time of such issuance,
drawing or amendment be the administrative charge which such Letter of Credit
Issuer is customarily charging for issuances of, drawings under or amendments
of, letters of credit issued by it.
(e) The Borrower shall pay to the Administrative Agent on the
Restatement Effective Date and thereafter for its own account and/or for
distribution to the Banks such fees as heretofore agreed by the Borrower and the
Administrative Agent.
(f) All computations of Fees shall be made in accordance with
Section 12.07(b).
3.02 VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three
Business Days' prior written notice (or telephonic notice confirmed in writing)
to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks), the Borrower
shall have the right, without premium or penalty, to terminate or partially
reduce the Unutilized Total Revolving Commitment, PROVIDED that (i) any such
termination shall apply to proportionately and permanently reduce the Revolving
Commitment, if any, of each of the Banks, (ii) any partial reduction pursuant to
this Section 3.02 shall be in the amount of at least $5,000,000 (or, if greater,
in integral multiples of $1,000,000) and (iii) each such reduction shall reduce
the then remaining Scheduled RF Reductions on a PRO RATA basis (based on the
then remaining amount of each such Scheduled RF Reduction).
3.03 MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) Each of
the Total Term A Commitment, the Total Term B Commitment and the Total Term C
Commitment shall terminate in its entirety on the Restatement Effective Date
(after giving effect to the Borrowings of Term A Loans, Term B Loans and Term C
Loans, respectively, on such date).
(b) The Total Revolving Commitment shall be reduced in an
amount of $17,500,000 on each of the last Business Day of each March, June,
September and December commencing September 2001 (each such reduction, a
"Scheduled RF Reduction").
(c) On each date upon which a mandatory repayment of Loans
pursuant to Section 4.02(A)(d), (e), (f), (g), (h) or (i) is required, or would
be required if any Acquisition Loans or Term Loans were then outstanding, the
Total Revolving Commitment shall be permanently reduced by the amount, if any,
by which the amount that would be required to be repaid pursuant to said
Sections if an unlimited amount of Acquisition Loans
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<PAGE> 25
and Term Loans were actually then outstanding exceeds the aggregate principal
amount of Acquisition Loans and Term Loans then outstanding.
(d) The Total Revolving Commitment (and the Revolving
Commitment of each Bank) shall terminate on the earlier of (x) the RF Maturity
Date and (y) the date on which a Change of Control occurs.
(e) Each partial reduction of the Total Revolving Commitment
provided for in this Section 3.03 shall apply PRO RATA to the Revolving
Commitment (if any) of each Bank.
SECTION 4. PAYMENTS.
4.01 VOLUNTARY PREPAYMENTS. The Borrower shall have the right
to prepay Loans, in whole or in part, without premium or penalty (except as
required by Section 1.11), from time to time on the following terms and
conditions: (i) the Borrower shall give the Administrative Agent at the Payment
Office written notice (or telephonic notice promptly confirmed in writing) of
its intent to prepay the Loans, whether such Loans are Term A Loans, Term B
Loans, Term C Loans or Revolving Loans, the amount of such prepayment and (in
the case of Eurodollar Loans) the specific Borrowing(s) pursuant to which made,
which notice shall be received by the Administrative Agent by 1:00 P.M. (New
York time) one Business Day prior to the date of such prepayment (and which
notice shall promptly be transmitted by the Administrative Agent to each of the
Banks); (ii) each partial prepayment of any Borrowing shall be in an aggregate
principal amount of at least $5,000,000, PROVIDED that no partial prepayment of
Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Loans outstanding pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount applicable thereto; (iii) each
prepayment in respect of any Loans made pursuant to a Borrowing shall be applied
PRO RATA among such Loans; and (iv) each prepayment of Term Loans pursuant to
this Section 4.01 shall be applied to the Term A Loans, the Term B Loans and
(unless waived by the holders thereof) the Term C Loans PRO RATA among same and
shall reduce the then remaining Scheduled Repayments under each Term Facility on
a PRO RATA basis (based upon the then remaining principal amount of each such
Scheduled Repayment).
4.02 MANDATORY PREPAYMENTS.
(A) REQUIREMENTS:
(a) If on any date (after giving effect to any other payments
on such date) the sum of (i) the aggregate outstanding principal amount of
Revolving Loans plus (ii) the aggregate amount of Letter of Credit Outstandings
exceeds the Total Revolving Commitment as then in effect, the Borrower shall
repay on such date that principal amount
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<PAGE> 26
of Revolving Loans and, after Revolving Loans have been paid in full, Unpaid
Drawings, in an aggregate amount equal to such excess. If, after giving effect
to the prepayment of Revolving Loans and Unpaid Drawings, the aggregate amount
of Letter of Credit Outstandings exceeds the Total Revolving Commitment as then
in effect, the Borrower shall pay to the Administrative Agent an amount in cash
and/or Cash Equivalents equal to such excess and the Administrative Agent shall
hold such payment as security for the obligations of the Borrower hereunder
pursuant to a cash collateral agreement to be entered into in form and substance
reasonably satisfactory to the Administrative Agent and the Borrower (which
shall permit certain investments in Cash Equivalents reasonably satisfactory to
the Administrative Agent and the Borrower until the proceeds are applied to the
secured obligations). In addition, if on any date (after giving effect to any
other payments on such date) the aggregate outstanding principal amount of
Acquisition Loans exceeds the Acquisition Sublimit then in effect, the Borrower
shall repay on such date that principal amount of Acquisition Loans in an
aggregate amount equal to such excess.
(b) On June 1 of each year commencing June 1, 1997, if a
Clean-Down Period shall not have occurred since the preceding July 1, the
Borrower shall prepay the principal amount of Working Capital Loans in an amount
(if any) necessary to reduce the sum of the aggregate outstanding principal
amount of Working Capital Loans plus the Letter of Credit Outstandings to not
more than $10,000,000, with the outstanding principal amount of Working Capital
Loans plus the Letter of Credit Outstandings not to exceed such $10,000,000 sum
until the Clean-Down Period has ended.
(c) (i) On each date set forth below the Borrower shall be
required to repay the principal amount of Term A Loans as is set forth opposite
such date (each such repayment, together with each repayment required by clauses
(c)(ii) and (c)(iii) below, a "Scheduled Repayment"):
<TABLE>
<CAPTION>
SCHEDULED REPAYMENT DATE AMOUNT
------------------------ ------
<S> <C>
June 26, 1997 $1,250,000
September 26, 1997 2,500,000
December 26, 1997 2,500,000
March 26, 1998 2,500,000
June 26, 1998 2,500,000
September 26, 1998 3,750,000
December 26, 1998 3,750,000
March 26, 1999 3,750,000
June 26, 1999 3,750,000
September 26, 1999 6,250,000
December 26, 1999 6,250,000
March 26, 2000 6,250,000
</TABLE>
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<PAGE> 27
<TABLE>
<S> <C>
June 26, 2000 6,250,000
September 26, 2000 8,750,000
December 26, 2000 8,750,000
March 26, 2001 8,750,000
June 26, 2001 8,750,000
September 26, 2001 10,000,000
December 26, 2001 10,000,000
March 26, 2002 10,000,000
June 26, 2002 10,000,000
September 26, 2002 11,250,000
December 26, 2002 11,250,000
March 26, 2003 11,250,000
TF Maturity Date 31,250,000
</TABLE>
(ii) On each date set forth below the Borrower shall be
required to repay the principal amount of Term B Loans as is set forth opposite
such date:
<TABLE>
<CAPTION>
SCHEDULED REPAYMENT DATE AMOUNT
------------------------ ------
<S> <C>
June 26, 1997 $ 650,000
September 26, 1997 1,300,000
December 26, 1997 1,300,000
March 26, 1998 1,300,000
June 26, 1998 1,300,000
September 26, 1998 2,000,000
December 26, 1998 2,000,000
March 26, 1999 2,000,000
June 26, 1999 2,000,000
September 26, 1999 3,300,000
December 26, 1999 3,300,000
March 26, 2000 3,300,000
June 26, 2000 3,300,000
September 26, 2000 4,600,000
December 26, 2000 4,600,000
March 26, 2001 4,600,000
June 26, 2001 4,600,000
September 26, 2001 5,300,000
December 26, 2001 5,300,000
March 26, 2002 5,300,000
June 26, 2002 5,300,000
September 26, 2002 6,000,000
December 26, 2002 6,000,000
</TABLE>
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<PAGE> 28
March 26, 2003 6,000,000
TF Maturity Date 14,700,000
(iii) The Borrower shall be required to repay the principal
amount of Term C Loans (x) on each March 26, June 26, September 26 and December
26 occurring on and after September 26, 1997 and prior to the C Maturity Date in
an amount equal to $250,000 and (y) on the C Maturity Date, in an amount equal
to $128,250,000.
(d) On or prior to the third Business Day following the date
of receipt thereof by Holdings and/or any of its Subsidiaries of the Cash
Proceeds from any Asset Sale, an amount equal to 100% of the Net Cash Proceeds
then received from such Asset Sale shall be applied as a mandatory repayment of
principal of (x) FIRST, the then outstanding Acquisition Loans and (y) SECOND,
once no Acquisition Loans remain outstanding, the then outstanding Term Loans
provided that to the extent any such Asset Sale constitutes a Specified Asset
Sale then the mandatory repayments required to be made with the Net Cash
Proceeds thereof pursuant to this clause (d) shall be applied FIRST to Term
Loans and SECOND to Acquisition Loans.
(e) On the date of the receipt thereof by Holdings and/or any
of its Subsidiaries an amount equal to 100% of the cash proceeds (net of
underwriting discounts and commissions and other customary fees and costs
associated therewith) from the incur-rence of Indebtedness for borrowed money by
Holdings or any of its Subsidiaries (other than Indebtedness permitted by
Section 8.04 as in effect on the Restatement Effective Date but excluding from
such exception Non-Recourse Debt that refinances properties financed by
Acquisition Loans) shall be applied as a mandatory repayment of principal of (x)
FIRST, the then outstanding Acquisition Loans and (y) SECOND, once no
Acquisition Loans remain outstanding, the then outstanding Term Loans.
(f) On the date of the receipt thereof by Holdings, an amount
equal to 100% of the cash proceeds (net of underwriting discounts and
commissions and other customary fees and costs associated therewith) from any
sale or issuance of equity by Holdings after the Restatement Effective Date
(other than any sale or issuance to management or employees) shall be applied as
a mandatory repayment of principal of (x) FIRST, the then outstanding
Acquisition Loans and (y) SECOND, once no Acquisition Loans remain outstanding,
the then outstanding Term Loans.
(g) On each date which is 90 days after the last day of each
fiscal year of Holdings (commencing with the fiscal year ending on December 31,
1997), an amount equal to 50% of Excess Cash Flow for such fiscal year shall be
applied as a mandatory repayment of principal of (x) FIRST, the then outstanding
Acquisition Loans and (y) SECOND, once no Acquisition Loans remain outstanding,
the then outstanding Term Loans.
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<PAGE> 29
(h) On the date of the receipt thereof by Holdings or any of
its Subsidiaries, an amount equal to 100% of the net cash proceeds constituting
termination fees under any Management Contract shall be applied as a mandatory
repayment of principal of (x) FIRST, the then outstanding Acquisition Loans and
(y) SECOND, once no Acquisition Loans remain outstanding, the then outstanding
Term Loans, PROVIDED that to the extent the affected Management Contract was in
effect on the Original Effective Date (and notwithstanding any subsequent
modification or extension thereof), then the mandatory repayments required to be
made with the termination fees paid thereunder pursuant to this clause (h) shall
be applied FIRST to Term Loans and SECOND to Acquisition Loans, PROVIDED
FURTHER, that any such net cash proceeds aggregating less than $500,000 for a
Management Contract that are received in any fiscal year of Holdings shall not
be required to be used to repay Loans pursuant to this clause (h) until such
time as all such exempted net cash proceeds aggregate $500,000 in such fiscal
year and, in such event, only to the extent of such excess.
(i) On the date of the receipt thereof by the Borrower, an
amount equal to 100% of a payment received by the Borrower under the CGL
Participation relating to principal indebtedness (and not to interest thereon)
shall be applied as a mandatory repayment of principal of (x) FIRST, the then
outstanding Term Loans and (y) SECOND, once no Term Loans remain outstanding,
the Acquisition Loans.
(j) On the date of which a Change of Control occurs, the then
outstanding principal amount of Term Loans, if any, shall become due and payable
in full.
(B) APPLICATION:
(a) Each mandatory repayment of Term Loans required pursuant
to Section 4.02(A)(d), (e), (f), (g), (h) or (i) shall be applied to the
repayment of the then remaining Scheduled Repayments on a pro rata basis (based
upon the then remaining principal amount of each such Scheduled Repayment).
(b) With respect to each repayment of Loans required by this
Section 4.02, the Borrower shall designate the Types of Loans which are to be
repaid and the specific Borrowing(s) under the affected Facility pursuant to
which made, provided that (i) if the outstanding principal amount of Eurodollar
Loans made pursuant to a Borrowing is reduced below the applicable Minimum
Borrowing Amount as a result of any such prepayment, then all the Loans
outstanding pursuant to such Borrowing shall be converted into Base Rate Loans,
and (ii) each prepayment of any Loans made pursuant to a Borrowing shall be
applied PRO RATA among such Loans. In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent shall,
subject to the above, make such designation in its sole discretion with a view,
but no obligation, to minimize breakage costs owing under Section 1.11.
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<PAGE> 30
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, all payments under this Agreement shall be made to
the Administrative Agent for the ratable (based on its PRO RATA share) account
of the Banks entitled thereto, not later than 1:00 P.M. (New York time) on the
date when due and shall be made in immediately available funds and in lawful
money of the United States of America at the Payment Office, it being understood
that written notice by the Borrower to the Administrative Agent to make a
payment from the funds in the Borrower's account at the Payment Office shall
constitute the making of such payment to the extent of such funds held in such
account. Any payments under this Agreement which are made later than 1:00 P.M.
(New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
4.04 NET PAYMENTS. (a) All payments made by the Borrower
hereunder, under any Note or any other Credit Document, will be made without
setoff, counterclaim or other defense. Except as provided for in Section
4.04(b), all such payments will be made free and clear of, and without deduction
or withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the
second succeeding sentence, any tax, imposed on or measured by the net income or
net profits of a Bank pursuant to the laws of the jurisdiction under which such
Bank is organized or the jurisdiction in which the principal office or
applicable lending office of such Bank is located or any subdivision thereof or
therein) and all interest, penalties or similar liabilities with respect to such
nonexcluded taxes, levies, imposts, duties, fees, assessments or other charges
(all such nonexcluded taxes, levies, imposts, duties, fees assessments or other
charges being referred to collectively as "Taxes"). If any Taxes are so levied
or imposed, the Borrower agrees to pay the full amount of such Taxes and such
additional amounts as may be necessary so that every payment of all amounts due
hereunder, under any Note or under any other Credit Document, after withholding
or deduction for or on account of any Taxes, will not be less than the amount
provided for herein or in such Note or in such other Credit Document. If any
amounts are payable in respect of Taxes pursuant to the preceding sentence, the
Borrower agrees to reimburse each Bank, upon the written request of such Bank,
for taxes imposed on or measured by the net income or profits of such Bank
pursuant to the laws of the jurisdiction in which such bank is organized or in
which the principal office or applicable lending office of such Bank is located
or under the laws of any political subdivision or taxing authority of any such
jurisdiction in which such bank is organized or in which the principal office or
applicable lending office of such Bank is located and for any withholding of
income or similar taxes imposed by the United States of America as such Bank
shall determine are payable by, or
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<PAGE> 31
withheld from, such Bank in respect of such amounts so paid to or on behalf of
such Bank pursuant to the preceding sentence and in respect of any amounts paid
to or on behalf of such Bank pursuant to this sentence. The Borrower will
furnish to the Administrative Agent within 45 days after the date the payment of
any Taxes, or any withholding or deduction on account thereof, is due pursuant
to applicable law certified copies of tax receipts, or other evidence
satisfactory to the Bank, evidencing such payment by the Borrower. The Borrower
will indemnify and hold harmless the Administrative Agent and each Bank, and
reimburse the Administrative Agent or such Bank upon its written request, for
the amount of any Taxes so levied or imposed and paid or withheld by such Bank.
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes
agrees to provide to the Borrower and the Administrative Agent on or prior to
the Restatement Effective Date, or in the case of a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 12.04 (unless
the respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer and such Bank is in compliance with the provisions of
this Section 4.04(b)), on the date of such assignment or transfer to such Bank,
(i) two accurate and complete original signed copies of Internal Revenue Service
Form 4224 or 1001 (or successor forms) certifying to such Bank's entitlement to
a complete exemption from United States withholding tax with respect to payments
to be made under this Agreement, any Note or any other Credit Document, or (ii)
if the Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit K (any such certificate, a Section 4.04(b)(ii) Certificate) and (y) two
accurate and complete original signed copies of Internal Revenue Service Form
W-8 (or successor form) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement, any Note or any other Credit Document.
In addition, each Bank agrees that from time to time after the Restatement
Effective Date, when a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material respect, it will
deliver to the Borrower and the Administrative Agent two new accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001,
or Form W-8 and a Section 4.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Bank to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement, any Note or any
other Credit Document, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate,
in which case such Bank shall not be required to deliver any such Form or
Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the
contrary contained in Section 4.04(a), but subject to Section 12.04(b) and the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or other
similar taxes imposed by the United States
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<PAGE> 32
(or any political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any Bank
which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for United States federal income tax purposes and which
has not provided to the Borrower such forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) hereof to gross-up payments to be made to a Bank in
respect of income or similar taxes imposed by the United States or any
additional amounts with respect thereto (I) if such Bank has not provided to the
Borrower the Internal Revenue Service forms required to be provided to the
Borrower pursuant to this Section 4.04(b) or (II) in the case of a payment other
than interest, to a Bank described in clause (ii) above, to the extent that such
forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 4.04 and except as specifically provided for in
Section 12.04(b), the Borrower agrees to pay additional amounts and indemnify
each Bank in the manner set forth in Section 4.04(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in respect
of any Taxes deducted or withheld by it as described in the previous sentence as
a result of any changes after the Restatement Effective Date in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of income or
similar Taxes.
SECTION 5. CONDITIONS PRECEDENT.
5.01 CONDITIONS PRECEDENT TO RESTATEMENT EFFECTIVE DATE. This
Agreement shall become effective on the date (the "Restatement Effective Date")
which is the date on which the following conditions shall first have been
satisfied:
(a) EFFECTIVENESS; NOTES. (i) Each of Holdings, the Borrower
and each Bank shall have executed a copy of this Agreement (whether the
same or different copies) and shall have delivered same (including by
way of facsimile transmission of the signature pages hereof) to the
Administrative Agent at its Notice Office and (ii) there shall have
been delivered to the Administrative Agent for the account of each Bank
the appropriate Note or Notes executed by the Borrower, in each case,
in the amount, maturity and as otherwise provided herein.
(b) OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions, addressed to the Administrative Agent and each of
the Banks and dated the Restatement Effective Date, from (i) Jones,
Day, Reavis & Pogue, special counsel to Holdings and its Subsidiaries,
which opinion shall cover the matters covered in Exhibit C-1 hereto,
(ii) Marvin I. Droz, Esq., General Counsel of Holdings, which opinion
shall cover the matters contained in Exhibit C-2 hereto and (iii) White
& Case, special counsel to the Banks, which opinion shall cover the
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<PAGE> 33
matters contained in Exhibit C-3 hereto, all such opinions to be in
form and substance reasonably satisfactory to the Administrative Agent.
(c) CORPORATE PROCEEDINGS. (i) The Administrative Agent shall
have received from the Borrower (x) a certificate, dated the
Restatement Effective Date, signed by the President or any
Vice-President of the Borrower in the form of Exhibit D hereto with
appropriate insertions and deletions, together with copies of the
articles of incorporation and the by-laws of the Borrower and the
resolutions of the Borrower referred to in such certificate and all of
the foregoing shall be reasonably satisfactory to the Administrative
Agent and (y) a certificate of its chief financial officer, dated the
Restatement Effective Date, to the effect that all of the applicable
conditions set forth in Sections 5.01(f) and (i) and 5.02 have been
satisfied as of such date.
(ii) On the Restatement Effective Date, all corporate and
legal proceedings and all instruments and agreements in connection with
the transactions contemplated by this Agreement and the other Credit
Documents shall be reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received
all information and copies of all certificates, documents and papers,
including good standing certificates and any other records of corporate
proceedings and governmental approvals, if any, which the
Administrative Agent may have reasonably requested in connection
therewith, such documents and papers, where appropriate, to be
certified by proper corporate or governmental authorities.
(d) ADVERSE CHANGE, ETC. From March 31, 1997 to the
Restatement Effective Date, nothing shall have occurred which the
Administrative Agent or the Required Banks shall reasonably determine
(i) has, or could reasonably be expected to have, a material adverse
effect on the rights or remedies of the Banks or the Administrative
Agent under this Agreement or any other Credit Document, or on the
ability of the Borrower to perform its obligations to them, or (ii)
has, or could reasonably be expected to have, a Material Adverse
Effect.
(e) LITIGATION. No actions, suits or proceedings shall be
pending or, to the knowledge of the Borrower, threatened against
Holdings or any of its Subsidiaries or any of their assets on the
Restatement Effective Date (i) with respect to this Agreement or any
other Credit Document or (ii) which the Administrative Agent or the
Required Banks shall determine has, or could reasonably be expected to
have, (x) a Material Adverse Effect or (y) a material adverse effect on
the rights or remedies of the Banks or the Administrative Agent
hereunder or under any other Credit Document or on the ability of any
Credit Party to perform its respective obligations to the Banks
hereunder or under any other Credit Document.
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<PAGE> 34
(f) REFINANCING. On the Restatement Effective Date and
concurrently with the incurrence of Term C Loans on such date, (x) all
the proceeds of the Term C Loans shall have been applied to repay
outstanding principal amount of Revolving Loans outstanding under the
Original Credit Agreement immediately prior to the Restatement
Effective Date and (y) all Obligations (including all accrued interest
and fees whether or not then due and payable but excluding the
principal amount of all Loans continued outstanding on the Restatement
Effective Date) owing by the Borrower under the Original Credit
Agreement on such date shall have been paid in full.
(g) ACKNOWLEDGEMENT. Each Credit Party shall have duly
authorized, executed and delivered an acknowledgement (the
"Acknowledgement") substantially in the form of Exhibit H hereto.
(h) SOLVENCY. The Administrative Agent shall have received
from the chief financial officer of Holdings a certificate dated the
Restatement Effective Date in the form of Exhibit I hereto, expressing
opinions of value and other appropriate facts or information regarding
the solvency of Holdings and its Subsidiaries taken as a whole.
(i) FEES. On or prior to the Restatement Effective Date, the
Borrower shall have paid to the Administrative Agent and the Banks all
Fees and expenses agreed upon by such parties to be paid on or prior to
such date.
5.02 CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligation
of the Banks to make each Loan and/or of a Letter of Credit Issuer to issue each
Letter of Credit is subject, at the time thereof, to the satisfaction of the
following conditions:
(a) NOTICE OF BORROWING, ETC. The Administrative Agent shall
have received a Notice of Borrowing meeting the requirements of Section
1.03 with respect to the incurrence of Loans or a Letter of Credit
Request meeting the requirement of Section 2.03 with respect to the
issuance of a Letter of Credit.
(b) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
each Credit Event and also after giving effect thereto, (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties contained herein or in the other Credit Documents shall be
true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of
the date of such Credit Event, except to the extent that such
representations and warranties expressly relate to an earlier date.
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<PAGE> 35
The acceptance of the benefits of each Credit Event shall
constitute a representation and warranty by the Borrower to each of the Banks
that all of the applicable conditions specified in Section 5.01 and/or 5.02, as
the case may be, exist as of that time. All of the certificates, legal opinions
and other documents and papers referred to in this Section 5, unless otherwise
specified, shall be delivered to the Administrative Agent for the account of
each of the Banks and, except for the Notes, in sufficient counterparts for each
of the Banks.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In
order to induce the Banks to enter into this Agreement and to make the Loans,
and/or to issue and/or to participate in the Letters of Credit provided for
herein, each of Holdings and the Borrower makes the following representations
and warranties to, and agreements with, the Banks, all of which shall survive
the execution and delivery of this Agreement and each Credit Event:
6.01 CORPORATE STATUS. Each of Holdings and its Subsidiaries
(i) is a duly organized or formed and validly existing corporation, limited
liability company or partnership, as the case may be, in good standing under the
laws of the jurisdiction of its formation and has the organizational power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage and (ii) has duly qualified and
is authorized to do business in all jurisdictions where it is required to be so
qualified except where the failure to be so qualified would not have a Material
Adverse Effect.
6.02 CORPORATE POWER AND AUTHORITY. Each Credit Party has the
corporate or other organizational power and authority to execute, deliver and
carry out the terms and provisions of the Credit Documents to which it is party
and has taken all necessary corporate or other organizational action to
authorize the execution, delivery and performance of the Credit Documents to
which it is party. Each Credit Party has duly executed and delivered each Credit
Document to which it is party and each Credit Document to which it is party
constitutes the legal, valid and binding obligation of each Credit Party
enforceable in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights (including laws and principles applicable to fraudulent transfers) and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
6.03 NO VIOLATION. Neither the execution, delivery and
performance by any Credit Party of the Credit Documents to which it is party nor
compliance with the terms and provisions thereof, nor the consummation of the
loan transactions contemplated therein (i) will contravene any provision of any
law, statute, rule, regulation, order, writ, injunction or decree of any court
or governmental instrumentality applicable to such Credit
-29-
<PAGE> 36
Party or its properties and assets, (ii) will conflict or result in any breach
of, any of the terms, covenants, conditions or provisions of, or constitute a
default under, or (other than pursuant to the Security Documents) result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of Holdings or any of its Subsidiaries pursuant to
the terms of any indenture, mortgage, deed of trust, agreement or other
instrument to which Holdings or any of its Subsidiaries is a party or by which
it or any of its property or assets are bound or to which it may be subject or
(iii) will violate any provision of the partnership agreement, certificate of
formation, certificate of incorporation or by-laws, as the case may be, of such
Credit Party.
6.04 LITIGATION. There are no actions, suits or proceedings
pending or, to the knowledge of Holdings, threatened with respect to Holdings or
any of its Subsidiaries (i) that have, or could reasonably be expected likely to
have, a Material Adverse Effect or (ii) that have, or could reasonably be
expected to have, a material adverse effect on the rights or remedies of the
Banks or on the ability of any Credit Party to perform its obligations to them
hereunder and under the other Credit Documents.
6.05 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of
all Term C Loans shall be utilized to repay Revolving Loans outstanding under
the Original Credit Agreement immediately prior to the Restatement Effective
Date. The proceeds of Acquisition Loans may only be utilized to finance
Permitted Acquisitions, while the proceeds of Working Capital Loans may be
utilized for general corporate purposes, other than to finance Permitted
Acquisitions and/or any other acquisition, provided that the proceeds of
Revolving Loans may not be utilized to fund payments under the guaranties of the
Borrower and Holdings permitted by Section 8.04(f)(C) hereof.
(b) No part of the proceeds of any Credit Event will be used
to purchase or carry Margin Stock. Neither any Credit Event, nor the use of the
proceeds thereof, will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
6.06 GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization, or validation of, or filing (other than filings related
to the perfection of the security interests granted to the Collateral Agent
pursuant to the Security Documents), recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required in
connection with (i) the execution, delivery and performance of any Credit
Document or (ii) the legality, validity, binding effect or enforceability of any
Credit Document.
6.07 TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf of
Holdings, the Borrower or any of its Subsidiaries in writing to the
Administrative Agent or any Bank for
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<PAGE> 37
purposes of or in connection with this Agreement or any transaction contemplated
herein is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of such Person in writing to any Bank in connection
with this Agreement will be, true and accurate in all material respects on the
date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information (taken as
a whole) not misleading at such time in light of the circumstances under which
such information was or is provided. The projections and PRO FORMA financial
information prepared by Holdings and the Borrower which are contained in such
materials are based on good faith estimates and assumptions believed by such
Persons to be reasonable at the time made, it being recognized by the Banks that
such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ materially from the projected results. As of the Restatement Effective
Date, there is no fact known to Holdings, the Borrower or any of its
Subsidiaries which has, or could likely have, a Material Adverse Effect which
has not theretofore been disclosed to the Administrative Agent.
6.08 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as
of the Restatement Effective Date on a PRO FORMA basis after giving effect to
all Indebtedness incurred and to be incurred, and Liens created, and to be
created, by the Credit Parties in connection therewith, (i) the sum of the
assets, at a fair valuation, of Holdings and its Subsidiaries taken as a whole
will exceed their debts, (ii) Holdings and its Subsidiaries taken as a whole
will not have incurred or intended to (and Holdings and the Borrower do not
believe that they will) incur debts beyond their ability to pay such debts as
such debts mature and (iii) Holdings and its Subsidiaries taken as a whole will
have sufficient capital with which to conduct their business. For purposes of
this Section 6.08, "debt" means any liability on a claim, and "claim" means (x)
right to payment whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured; or (y) right to an equitable remedy for
breach of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured.
(b) (i) The combined balance sheets of the Borrower and its
affiliates at December 31, 1995 and December 31, 1996, and the related combined
statements of income, changes in equity and cash flows for the fiscal periods
ended as of said dates, which have been examined by Coopers & Lybrand L.L.P.,
independent certified public accountants, copies of each of which have
heretofore been furnished to each Bank, present fairly the financial position of
the respective entities as of the dates of said statements and the results for
the periods covered thereby. All such financial statements have been prepared in
accordance with generally accepted accounting principles and practices
consistently applied except to the extent provided in the notes to said
financial statements. Nothing has occurred since December 31, 1996 that has had
a Material Adverse Effect.
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<PAGE> 38
(c) Except as fully reflected in the financial statements and
the notes thereto described in Section 6.08(b), there were as of the Restatement
Effective Date (after giving effect to the Loans made on such date), no material
Contingent Obligations, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including, without
limitation, interest rate or foreign currency swap or exchange transaction with
respect to Holdings or any of its Subsidiaries which, either individually or in
aggregate, would be material to Holdings and its Subsidiaries taken as a whole,
except as incurred in the ordinary course of business consistent with past
practices subsequent to December 31, 1996.
6.09 SECURITY INTERESTS. Once executed and delivered, and
until terminated in accordance with the terms thereof, each of the Security
Documents creates, as security for the obligations purported to be secured
thereby, a valid and enforceable perfected security interest in and Lien on all
of the Collateral subject thereto from time to time, superior to and prior to
the rights of all third Persons (subject in the case of the Mortgages to
Permitted Encumbrances and subject to no other Liens (except that the Security
Agreement Collateral and/or Mortgage Properties may be subject to Permitted
Liens and (in the case of the Mortgaged Properties) Permitted Encumbrances
relating thereto)) in favor of the Collateral Agent for the benefit of the
Banks. No filings or recordings are required in order to perfect the security
interests created under any Security Document except for filings or recordings
required in connection with any such Security Document which shall have been
made, or for which satisfactory arrangements have been made, upon or prior to
the execution and delivery thereof. All mortgage, mortgage recording, stamp,
intangible or other similar taxes required to be paid by any Person under
applicable Legal Requirements or other laws applicable to the Real Property
encumbered by the Mortgages in connection with the execution, delivery,
recordation, filing, registration, perfection or enforcement of the Mortgages
have been paid.
6.10 ALL REQUIRED CREDIT DOCUMENTS. As of the date immediately
prior to the Restatement Effective Date, all Persons required under the Original
Credit Agreement to execute and deliver any Credit Document (other than
Mortgages to be delivered pursuant to Section 7.11(a) hereof) shall have
executed and delivered same, each such Credit Document shall be in full force
and effect and all filings and recordings necessary to perfect the Liens, if
any, created thereunder shall have been made.
6.11 TAX RETURNS AND PAYMENTS. Each of Holdings and each of
its Subsidiaries has filed all federal income tax returns and all other material
tax returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith. Holdings
and each of its Subsidiaries have paid, or have provided adequate reserves for
the payment of, all federal, state and foreign income taxes applicable for all
prior fiscal years and for the current fiscal year to the Restatement Effective
Date.
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6.12 COMPLIANCE WITH ERISA. Each Plan (and each related trust,
insurance contract or fund) is in substantial compliance with its terms and with
all applicable laws, including without limitation ERISA and the Code; each Plan
(and each related trust, if any) which is intended to be qualified under Section
401(a) of the Code has received a determination letter from the Internal Revenue
Service to the effect that it meets the requirements of Sections 401(a) and
501(a) of the Code; no Reportable Event has occurred; no Plan which is a
multiemployer plan (as defined in Section 4001(a)(3) of ERISA) is insolvent or
in reorganization; no Plan has an Unfunded Current Liability; no Plan which is
subject to Section 412 of the Code or Section 302 of ERISA has an accumulated
funding deficiency, within the meaning of such sections of the Code or ERISA, or
has applied for or received a waiver of an accumulated funding deficiency or an
extension of any amortization period, within the meaning of Section 412 of the
Code or Section 303 or 304 of ERISA; all contributions required to be made with
respect to a Plan have been timely made; neither Holdings nor any Subsidiary of
Holdings nor any ERISA Affiliate has incurred any material liability (including
any indirect, contingent or secondary liability) to or on account of a Plan
pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or expects to
incur any such liability under any of the foregoing sections with respect to any
Plan; no condition exists which presents a material risk to Holdings or any
Subsidiary of Holdings or any ERISA Affiliate of incurring a liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the Code; no
proceedings have been instituted to terminate or appoint a trustee to administer
any Plan which is subject to Title IV of ERISA; no action, suit, proceeding,
hearing, audit or investigation with respect to the administration, operation or
the investment of assets of any Plan (other than routine claims for benefits) is
pending, expected or threatened; using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of Holdings and its Subsidiaries and its ERISA Affiliates to all
Plans which are multiemployer plans (as defined in Section 4001(a)(3) of ERISA)
in the event of a complete withdrawal therefrom, as of the close of the most
recent fiscal year of each such Plan, would not exceed $500,000. Each group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) which covers or has covered employees or former employees of Holdings, any
Subsidiary of Holdings, or any ERISA Affiliate has at all times been operated in
compliance with the provisions of Part 6 of subtitle B of Title I of ERISA and
Section 4980B of the Code; no lien imposed under the Code or ERISA on the assets
of Holdings or any Subsidiary of Holdings or any ERISA Affiliate exists or is
likely to arise on account of any Plan; and Holdings and its Subsidiaries do not
maintain or contribute to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) which provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any Plan
the obligations with respect to which could reasonably be expected to have a
material adverse effect on the ability of any Credit Party to perform its
obligations under this Agreement or the other Credit Documents.
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6.13 SUBSIDIARIES. On the Restatement Effective Date, the only
direct Subsidiaries of Holdings are the Borrower and Capital Corp. Annex III
hereto lists each Subsidiary of the Borrower (and the direct and indirect
ownership interest of Holdings therein), in each case existing on the
Restatement Effective Date.
6.14 INTELLECTUAL PROPERTY, ETC. Holdings, the Borrower and
each of its Subsidiaries has obtained or has the right to use all material
patents, trademarks, servicemarks, trade names, copyrights, licenses and other
rights, free from burdensome restrictions, that are necessary for the operation
of its business as presently conducted and as proposed to be conducted.
6.15 ENVIRONMENTAL MATTERS. (a) Holdings, the Borrower and
each of its Subsidiaries is in compliance with all Environmental Laws governing
its business except to the extent that any such failure to comply (together with
any resulting penalties, fines or forfeitures) would not reasonably be expected
to have a Material Adverse Effect. All licenses, permits, registrations or
approvals required for the business of Holdings, the Borrower and each of its
Subsidiaries, as conducted as of the Restatement Effective Date, under any
Environmental Law have been secured and Holdings, the Borrower and each of its
Subsidiaries is in substantial compliance therewith, except for such licenses,
permits, registrations or approvals the failure to secure or to comply therewith
is not reasonably likely to have a Material Adverse Effect. Neither Holdings,
the Borrower nor any of its Subsidiaries is in any respect in noncompliance
with, breach of or default under any applicable writ, order, judgment,
injunction, or decree to which Holdings, the Borrower or such Subsidiary is a
party or which would affect the ability of Holdings, the Borrower or such
Subsidiary to operate any real property and no event has occurred and is
continuing which, with the passage of time or the giving of notice or both,
would constitute noncompliance, breach of or default thereunder, except in each
such case, such noncompliance, breaches or defaults as would not reasonably be
expected to, in the aggregate, have a Material Adverse Effect. There are as of
the Restatement Effective Date no Environmental Claims pending or, to the best
knowledge of Holdings and the Borrower, threatened wherein an unfavorable
decision, ruling or finding would reasonably be expected to have a Material
Adverse Effect. There are no facts, circumstances, conditions or occurrences on
any Real Property now or at any time owned, leased or operated by Holdings, the
Borrower or any of its Subsidiaries or, to the knowledge of Holdings and the
Borrower, on any property adjacent to any such Real Property that could
reasonably be expected (i) to form the basis of an Environmental Claim against
Holdings, the Borrower or any of its Subsidiaries or any Real Property of
Holdings, the Borrower or any of its Subsidiaries, or (ii) to cause such Real
Property to be subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property under any Environmental Law, except in
each such case, such Environmental Claims or restrictions that individually or
in the aggregate would not reasonably be expected to have a Material Adverse
Effect.
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(b) Except as disclosed on Annex IX, as of the Restatement
Effective Date there are no underground storage tanks located on any Real
Property owned, leased or operated by Holdings, the Borrower or any of its
Subsidiaries.
6.16 PROPERTIES. Annex IV contains a true and complete list of
each Real Property owned or leased by Holdings, the Borrower or any of its
Subsidiaries on the Restatement Effective Date and the type of interest therein
held by Holdings, the Borrower or the respective Subsidiary. Holdings, the
Borrower and each of its Subsidiaries has good and indefeasible title in fee to
each Real Property owned by it and a valid Leasehold in each Real Property
leased by it free and clear of all Liens and security interests other than the
Liens created pursuant to the Mortgages, Permitted Liens and Permitted
Encumbrances. Holdings, the Borrower and each of its Subsidiaries has received
all material assignments, waivers, consents and other documents, and duly
effected all material recordings, filings and other material actions necessary
to establish, protect and perfect its right, title and interest in and to each
Real Property owned or leased by it.
6.17 LABOR RELATIONS; COLLECTIVE BARGAINING AGREEMENTS. There
is (i) no significant unfair labor practice complaint pending against Holdings,
the Borrower or any of its Subsidiaries or, to the knowledge of Holdings and the
Borrower, threatened against any of them, before the National Labor Relations
Board, and no significant grievance or significant arbitration proceeding
arising out of or under any collective bargaining agreement is now pending
against Holdings, the Borrower or any of its Subsidiaries or, to the knowledge
of Holdings and the Borrower, threatened against any of them, (ii) no
significant strike, labor dispute, slowdown or stoppage is pending against
Holdings, the Borrower or any of its Subsidiaries or, to the best knowledge of
Holdings and the Borrower, threatened against Holdings, the Borrower or any of
its Subsidiaries and (iii) to the knowledge of Holdings and the Borrower, no
union representation question exists with respect to the employees of Holdings,
the Borrower or any of its Subsidiaries, except (with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate) such as would not reasonably be expected to have a Material Adverse
Effect.
6.18 INDEBTEDNESS. Annex V sets forth a true and complete list
of all Indebtedness of the Borrower and each of its Subsidiaries incurred prior
to, but which is to remain outstanding after, the Restatement Effective Date
(collectively, the "Existing Indebtedness"), in each case showing the aggregate
principal amount, amortization and interest rate thereof (and available
commitments, if any, thereunder) and the name of the respective borrower and any
other entity which directly or indirectly guaranteed such debt.
6.19 ORIGINAL CREDIT AGREEMENT. All representations and
warranties contained in the Original Credit Agreement and not contained herein
were true and correct in all material respects as of the Restatement Effective
Date.
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6.20 CERTAIN MATERIAL AGREEMENTS. Each Management Contract and
each Existing Indebtedness Agreement is in full force and effect in accordance
with its respective terms, without any material default existing thereunder.
6.21 THIRD-PARTY RIGHTS. Except as disclosed on Annex X, as of
the Restatement Effective Date, no Person holds any right of first refusal,
option to purchase or lease, buy-out right, right of first offer or other
similar right or option with respect to any portion of the Collateral or any
partnership interest, joint venture interest, membership interest or shareholder
interest owned by Holdings in any of its Subsidiaries.
SECTION 7. AFFIRMATIVE COVENANTS. Each of Holdings and the
Borrower hereby covenants and agrees that for so long as this Agreement is in
effect and until such time as the Total Commitment has been terminated, no Notes
are outstanding and the Loans, together with interest, Fees and all other
Obligations hereunder, have been paid in full:
7.01 REPORTING REQUIREMENTS. Holdings will furnish to each of
the Banks:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in
any event within 90 days after the close of each fiscal year of
Holdings, the consolidated balance sheet of Holdings and its
consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income, of stockholder's equity and
of cash flows for such fiscal year, in each case setting forth
comparative figures for the preceding fiscal year and examined by
independent certified public accountants of recognized national
standing whose opinion shall not be qualified as to the scope of audit
or as to the status of Holdings and its Subsidiaries as a going
concern, together with a certificate of such accounting firm stating
that in the course of its regular audit of the business of Holdings and
its Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, nothing came to the attention of
such accounting firm which would lead it to believe that any Default or
Event of Default as they relate to accounting matters has occurred and
is continuing or if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a statement
as to the nature thereof, it being understood that the delivery of
Holdings Form 10-K for any fiscal year or Form 10-Q for any fiscal
quarter, as the case may be, within the time frame specified in Section
7.01(a) or (b), respectively, shall satisfy the requirements of Section
7.01(a) or (b), as the case may be, to the extent covering the
financial information specified herein or therein.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event within 45 days after the close of each of the first three
quarterly accounting periods in each fiscal year of Holdings, the
consolidated balance sheet of Holdings and its
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consolidated Subsidiaries as at the end of such quarterly period and
the related consolidated statements of income, of stockholder's equity
and of cash flows for such quarterly period and for the elapsed portion
of the fiscal year ended with the last day of such quarterly period, in
each case setting forth comparative figures for the related periods in
the prior fiscal year and which shall be certified by the Chief
Financial Officer or other Authorized Officer of Holdings, subject to
changes resulting from normal year-end audit adjustments.
(c) BUDGET. Not less than 10 days prior to the commencement of
each fiscal year of Holdings, a preliminary consolidated budget (to be
followed no later than 30 days after the commencement of such fiscal
year by a final consolidated budget) of Holdings and its Subsidiaries
in reasonable detail for each of the four fiscal quarters of such
fiscal year, as customarily prepared by management for its internal
use, setting forth, with appropriate discussion, the principal
assumptions upon which such plans are based.
(d) OFFICER'S CERTIFICATES. At the time of (i) the delivery of
the financial statements provided for in Sections 7.01(a) and (b), a
certificate of the Chief Financial Officer or other Authorized Officer
of Holdings to the effect that no Default or Event of Default exists
or, if any Default or Event of Default does exist, specifying the
nature and extent thereof, which certificate shall set forth the
calculations required to establish (I) the Leverage Ratio as at the
last day of such fiscal year or quarter, as the case may be, and (II)
whether the Borrower was in compliance with the provisions of Sections
8.10, 8.11, 8.12, 8.13 and 8.14 as at the end of such fiscal year or
quarter, as the case may be, (ii) the delivery of the financial
statements provided for in Section 7.01(a), a certificate of the Chief
Financial Officer or other Authorized Officer of Holdings setting forth
the calculations required to establish the amount of Excess Cash Flow
for the fiscal year of Holdings then last ended and (iii) at the time
of the consummation of any Permitted Acquisition (in whole or in part)
that is effected (in whole or in part) by the incurrence of
Indebtedness by the Borrower or any Subsidiary at a time when the
Margin Reduction Discount is (or based on the last officer's
certificate delivered pursuant to clause (d)(i) above will be) greater
than zero, a certificate of any of the persons specified in clause
(d)(i) above setting forth the calculations establishing the Leverage
Ratio after giving effect to the incurrence of such Indebtedness.
(e) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any
event within three Business Days after Holdings or any of its
Subsidiaries obtains knowledge thereof, notice of (x) the occurrence of
any event which constitutes a Default or Event of Default, which notice
shall specify the nature thereof, the period of existence thereof and
what action Holdings proposes to take with respect thereto and (y) any
litigation or governmental or regulatory proceeding pending against
Holdings
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or any of its Subsidiaries which is likely to have a Material Adverse
Effect or a material adverse effect on the Collateral or the ability of
any Credit Party to perform its obligations hereunder or under any
other Credit Document.
(f) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy
of each other report or "management letter" submitted to Holdings or
any of its Subsidiaries by their independent accountants or independent
actuaries in connection with any annual, interim or special audit made
by them of the books of Holdings or any of its Subsidiaries.
(g) ERISA. Promptly upon completion thereof, deliver to each
of the Banks a complete copy of the annual report (Form 5500) of each
Plan (including, to the extent required, the related financial and
actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with
the Internal Revenue Service. In addition to any certificates or
notices delivered to the Banks pursuant to the first sentence hereof,
copies of reports and any material notices received by Holdings, any
Subsidiary of Holdings or any ERISA Affiliate with respect to any Plan
shall be delivered to the Banks no later than 10 days after the date
such report has been filed with the Internal Revenue Service or such
notice has been received by Holdings, such Subsidiary or such ERISA
Affiliate, as applicable.
(h) ENVIRONMENTAL MATTERS. Promptly upon, and in any event
within 10 Business Days after, an officer of Holdings, the Borrower or
any of its Subsidiaries obtains knowledge thereof, notice of one or
more of the following environmental matters: (i) any pending or
threatened (in writing) material Environmental Claim against Holdings,
the Borrower or any of its Subsidiaries or any Real Property owned or
operated by Holdings, the Borrower or any of its Subsidiaries; (ii) any
condition or occurrence on or arising from any Real Property owned or
operated by Holdings, the Borrower or any of its Subsidiaries that (a)
results in material noncompliance by Holdings, the Borrower or any of
its Subsidiaries with any applicable Environmental Law or (b) would
reasonably be expected to form the basis of a material Environmental
Claim against Holdings, the Borrower or any of its Subsidiaries or any
such Real Property; (iii) any condition or occurrence on any Real
Property owned, leased or operated by Holdings, the Borrower or any of
its Subsidiaries that could reasonably be expected to cause such Real
Property to be subject to any material restrictions on the ownership,
occupancy, use or transferability by Holdings, the Borrower or any of
its Subsidiaries of such Real Property under any Environmental Law; and
(iv) the taking of any material removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Property owned, leased or operated by Holdings, the Borrower or any of
its Subsidiaries as required by any Environmental Law or any
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governmental or other administrative agency. All such notices shall
describe in reasonable detail the nature of the Environmental Claim and
Holdings', the Borrower's or such Subsidiary's response thereto.
(i) OTHER INFORMATION. Promptly upon transmission thereof,
copies of any filings and registrations with, and reports to, the SEC
by Holdings or any of its Subsidiaries (other than any registration
statement on Form S-8) and copies of all financial statements, proxy
statements, notices and reports as Holdings or any of its Subsidiaries
shall send to analysts generally or to the holders (other than Holdings
and its Subsidiaries) of their capital stock or of the Indebtedness in
their capacity as such holders (in each case to the extent not
theretofore delivered to the Banks pursuant to this Agreement) and,
with reasonable promptness, such other information or documents
(financial or otherwise) as the Administrative Agent on its own behalf
or on behalf of the Required Banks may reasonably request from time to
time.
7.02 BOOKS, RECORDS AND INSPECTIONS. Holdings will, and will
cause each of its Subsidiaries to, permit, upon at least five Business Days'
notice to the Chief Financial Officer or any other Authorized Officer of
Holdings, officers and designated representatives of the Administrative Agent or
the Required Banks to visit and inspect any of the properties or assets of
Holdings and any of its Subsidiaries in whomsoever's possession (but only to the
extent Holdings or such Subsidiary has the right to do so to the extent in the
possession of another Person), and to examine the books of account of Holdings
and any of its Subsidiaries and discuss the affairs, finances and accounts of
Holdings and of any of its Subsidiaries with, and be advised as to the same by,
its and their officers and independent accountants and independent actuaries, if
any, all at such reasonable times and intervals and to such reasonable extent as
the Administrative Agent or the Required Banks may request.
7.03 INSURANCE. (a) Holdings will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect insurance with
reputable and solvent insurers (which may include Subsidiaries which are
licensed insurance carriers) in such amounts and covering such risks and
liabilities as are in accordance with normal industry practice, PROVIDED that
this covenant shall be satisfied in respect of any Mortgaged Property to the
extent the insurance covenants in the related Mortgage are satisfied. Holdings
will, and will cause each of its Subsidiaries to, furnish annually to the
Administrative Agent a summary of the insurance carried.
(b) Holdings will, and will cause each of its Subsidiaries to,
at all times keep their respective property insured in favor of the Collateral
Agent, and all policies (including the Mortgage Policies) or certificates (or
certified copies thereof) with respect to, or other evidence acceptable to the
Administrative Agent of, such insurance (and any other insurance maintained by
Holdings or any such Subsidiary) (i) shall be endorsed to the Collateral Agent's
satisfaction for the benefit of the Collateral Agent (including, without
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limitation, by naming the Collateral Agent as loss payee (with respect to
Collateral) or, to the extent permitted by applicable law, as an additional
insured), (ii) shall state that such insurance policies shall not be cancelled
without 30 days' prior written notice thereof (or 10 days' prior written notice
in the case of cancellation for the non-payment of premiums) by the respective
insurer to the Collateral Agent, (iii) shall provide that the respective
insurers irrevocably waive any and all rights of subrogation with respect to the
Collateral Agent and the Banks and (iv) shall be deposited with the Collateral
Agent. In no event shall Holdings be required to deposit the actual insurance
policies with the Collateral Agent. The Administrative Agent shall deliver
copies of any certificates of insurance to a Bank upon such Bank's request.
(c) If Holdings or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this Section 7.03, or if Holdings or
any of its Subsidiaries shall fail to so endorse and deposit all policies or
certificates with respect thereto, the Administrative Agent and/or the
Collateral Agent shall have the right (but shall be under no obligation), upon
prior notice to Holdings, to procure such insurance, and Holdings agrees to
reimburse the Administrative Agent or the Collateral Agent, as the case may be,
for all costs and expenses of procuring such insurance.
7.04 PAYMENT OF TAXES. Holdings will pay and discharge, and
will cause each of its Subsidiaries to pay and discharge, all taxes, assessments
and governmental charges or levies imposed upon it or upon its income or
profits, or upon any properties belonging to it, prior to the date on which
penalties attach thereto, and all lawful claims (other than claims relating to
the adjustment or settling, in the ordinary course of business, of claims in
respect of insurance policies or reinsurance contracts) which, if unpaid, might
become a Lien or charge upon any properties of Holdings or any of its
Subsidiaries, PROVIDED that neither Holdings nor any of its Subsidiaries shall
be required to pay any such tax, assessment, charge, levy or claim which is
being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
7.05 CORPORATE FRANCHISES. Holdings will do, and will cause
each of its Subsidiaries to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
authority, PROVIDED that any transaction permitted by Section 8.02 will not
constitute a breach of this Section 7.05.
7.06 COMPLIANCE WITH STATUTES, ETC. Holdings will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property other than those the non-compliance
with which would not have, and which would not be reasonably expected to
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have, a Material Adverse Effect or a material adverse effect on the Collateral
or the ability of any Credit Party to perform its obligations under any Credit
Document.
7.07 GOOD REPAIR. Holdings will, and will cause each of its
Subsidiaries to, ensure that its material properties and equipment used or
useful in its business in whomsoever's possession they may be, are kept in good
repair, working order and condition, normal wear and tear excepted, and that
from time to time there are made in such properties and equipment all needful
and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements thereto, to the extent and in the manner customary for
companies in similar businesses.
7.08 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) (i) Holdings will
comply, and will cause each of its Subsidiaries to comply, in all material
respects, with all Environmental Laws applicable to the ownership, lease or use
of all Real Property now or hereafter owned, leased or operated by the Borrower
or any of its Subsidiaries, will promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance, and will keep or cause to
be kept all such Real Property free and clear of any Liens imposed pursuant to
such Environmental Laws and (ii) neither Holdings, the Borrower nor any of its
Subsidiaries will generate, use, treat, store, release or dispose of, or permit
the generation, use, treatment, storage, release or disposal of, Hazardous
Materials on any Real Property now or hereafter owned, leased or operated by
Holdings, the Borrower or any of its Subsidiaries or transport or permit the
transportation of Hazardous Materials to or from any such Real Property other
than in substantial compliance with applicable Environmental Laws and in the
ordinary course of business. If required to do so under any applicable directive
or order of any governmental agency, Holdings and the Borrower each agrees to
undertake, and cause each of its Subsidiaries to undertake, any clean up,
removal, remedial or other action necessary to remove and clean up any Hazardous
Materials from any Real Property owned, leased or operated by Holdings, the
Borrower or any of its Subsidiaries in accordance with, in all material
respects, the requirements of all applicable Environmental Laws and in
accordance with, in all material respects, such orders and directives of all
governmental authorities, except to the extent that Holdings, the Borrower or
such Subsidiary is contesting such order or directive in good faith and by
appropriate proceedings and for which adequate reserves have been established to
the extent required by GAAP.
(b) At the written request of the Administrative Agent or the
Required Banks, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time after the Banks receive notice under
Section 7.01(h) for any event for which notice is required to be delivered for
any Real Property which discloses an Environmental Claim or any potential
requirement for remedial or similar work aggregating in excess of $1,000,000,
the Borrower will provide, at its sole cost and expense, an environmental site
assessment report concerning any such Real Property now or hereafter
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owned, leased or operated by Holdings, the Borrower or any of its Subsidiaries,
prepared by an environmental consulting firm reasonably satisfactory to the
Administrative Agent, indicating the presence or absence of Hazardous Materials
and the potential cost of any removal or remedial action in connection with any
Hazardous Materials on such Real Property. If the Borrower fails to provide the
same within 90 days after such request was made, the Administrative Agent may
order the same, and the Borrower shall grant and hereby grants, to the
Administrative Agent and the Banks and their agents, access to such Real
Property and specifically grants the Administrative Agent and the Banks an
irrevocable non-exclusive license, subject to the rights of tenants, to
undertake such an assessment, all at the Borrower's expense.
7.09 END OF FISCAL YEARS; FISCAL QUARTERS. Holdings will, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries' fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
7.10 INTEREST RATE HEDGING. On the Restatement Effective Date,
the Borrower will be party to Interest Rate Agreements, reasonably satisfactory
to the Administrative Agent, establishing a fixed or maximum rate in respect of
an amount equal to at least (x) 60% of Total Indebtedness outstanding on the
Restatement Effective Date less (y) the aggregate principal amount of the CGL
Participations, for a period of years reasonably acceptable to the
Administrative Agent.
7.11 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) No later
than the date which is 30 days after the Restatement Effective Date:
(i) the Borrower and its Subsidiaries shall have complied in
full with the provisions of Section 7.11(a) of the Original Credit Agreement
with respect to all Real Property (and related personal property) as to which
Additional Security Documents (as defined in the Original Credit Agreement) were
required to be delivered pursuant to such Section 7.11(a); and
(ii) the Collateral Agent shall have received (x) such
executed amendments (in form and substance reasonably satisfactory to
the Collateral Agent) to the Existing Mortgages (the Existing Mortgages
as so amended, if at all, and each mortgage, deed of trust or deeds to
secure debt delivered pursuant to clause (i) above, each a "Mortgage"
and collectively the "Mortgages") as the Collateral Agent deems
necessary or appropriate to give effect to the transactions
contemplated by this Agreement and counterparts of such amendments
shall have been recorded in all places where the related original
Existing Mortgages were filed and (y) such endorsements, if any, to the
Existing Mortgage Policies as the Collateral Agent deems appropriate
(as so endorsed, if at all, the "Mortgage Policies"), provided that
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the executed amendments so delivered to the Collateral Agent with
respect to Mortgaged Properties located in States where there exists
substantial mortgage recording taxes will not be so recorded, and
Mortgage Policy endorsements will not be so obtained with respect to
such properties, until and unless an Event of Default exists, at which
time such amendments will be recorded, and such endorsements obtained,
at the Borrower's expense.
(b) The Borrower will give the Collateral Agent not less than
15 days prior written notice of the scheduled closing date for any Permitted
Acquisition by the Borrower or any of its Subsidiaries occurring after the
Restatement Effective Date. Subject to obtaining any consents from third parties
(including third party lessors and co-venturers) necessary to be obtained for
the granting of a Lien on the interests or assets acquired pursuant to any such
Permitted Acquisition (with the Borrower hereby agreeing to use its reasonable
efforts to obtain such consents), the Borrower will, and will cause its
Subsidiaries to, grant the Collateral Agent for the benefit of the Banks
security interests and mortgages (each an "Additional Security Document") in the
interests or properties (other than (I) any Real Property and related personal
property assets acquired by a joint venture with the proceeds of equity
investments made by the Borrower or a Subsidiary to the extent such equity
investments are pledged to the Collateral Agent and (II) any Real Property and
related personal property assets acquired with the proceeds of, and securing, or
subject to assumed, Non-Recourse Debt and those constituting expansions of
existing facilities subject to mortgages in favor of other Persons) as are
acquired after the Restatement Effective Date by the Borrower or such Subsidiary
with the proceeds of Acquisition Loans and as may be requested from time to time
by the Administrative Agent or the Required Banks, as additional security for
the Obligations. Each Additional Security Document shall be granted pursuant to
documentation reasonably satisfactory in form and substance to the
Administrative Agent and shall constitute a valid and enforceable perfected Lien
upon the interests or properties so acquired, superior to and prior to the
rights of all third Persons and subject to no other Liens except those permitted
by Section 8.03 or otherwise agreed by the Administrative Agent at the time of
perfection thereof and such other encumbrances as may be set forth in the
mortgage policy, if any, relating to such Additional Security Document which
shall be delivered to the Collateral Agent together with such Additional
Security Document and which shall be reasonably satisfactory in form and
substance to the Collateral Agent. The Additional Security Document or
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to establish, perfect, preserve
and protect the Liens created thereby required to be granted pursuant to the
Additional Security Document and all taxes, fees and other charges payable in
connection therewith shall have been paid in full.
(c) Holdings and the Borrower will, and will cause each of
their respective Subsidiaries to, at the expense of the Borrower, make, execute,
endorse, acknowledge, file and/or deliver to the Collateral Agent from time to
time such conveyances, financing
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statements, transfer endorsements, powers of attorney, certificates, and other
assurances or instruments and take such further steps relating to the Collateral
covered by any of the Security Documents as the Collateral Agent may reasonably
require. If at any time the Collateral Agent determines, based on applicable
law, that all applicable taxes (including, without limitation, mortgage
recording taxes or similar charges) were not paid in connection with the
recordation of any Mortgage, the Borrower shall promptly pay the same upon
demand. Furthermore, the Borrower shall cause to be delivered to the Collateral
Agent such opinions of counsel, title insurance, surveys and other related
documents as may be reasonably requested by the Collateral Agent to assure
itself that this Section 7.11 has been complied with, all of which documents
shall be in form and substance reasonably satisfactory to the Collateral Agent.
(d) Holdings and the Borrower each agrees that each action
required above by this Section 7.11 shall be completed as soon as practicable,
but in no event later than 60 days after such action is requested to be taken by
the Administrative Agent or the Required Banks.
7.12 CORPORATE SEPARATENESS. Holdings and the Borrower will
take, and will cause each of its Subsidiaries to take, all such action as is
necessary to keep the operations of Holdings, the Borrower and its Subsidiaries
separate and apart from those of each Specified Subsidiary, including, without
limitation, ensuring that all customary formalities regarding corporate
existence, including holding regular board of directors' meetings and
maintenance of corporate records, are followed. All financial statements of
Holdings and its Subsidiaries provided to creditors will clearly evidence the
corporate separateness of Holdings and its other Subsidiaries from each
Specified Subsidiary. Finally, neither Holdings nor any of its other
Subsidiaries will take any action, or conduct its affairs in a manner which is
likely to result in the corporate existence of a Specified Subsidiary on the one
hand, and Holdings and its other Subsidiaries on the other, being ignored, or in
the assets and liabilities of Holdings or any of its other Subsidiaries being
substantively consolidated with those of a Specified Subsidiary in a bankruptcy,
reorganization or other insolvency proceeding. No action or indemnity expressly
permitted by this Agreement will breach this covenant.
7.13 ERISA. As soon as possible and, in any event, within ten
(10) days after Holdings, any Subsidiary of Holdings or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following, Holdings
will deliver to each of the Banks a certificate of the chief financial officer
of Holdings setting forth the full details as to such occurrence and the action,
if any, that Holdings, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by Holdings, the Subsidiary, the ERISA Affiliate, the PBGC, a
Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred; that an accumulated funding deficiency, within
the meaning of Section 412 of the
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Code or Section 302 of ERISA, has been incurred or an application may be or has
been made for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of ERISA
with respect to a Plan; that any contribution required to be made with respect
to a Plan has not been timely made; that a Plan has been or may be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA; that a
Plan has an Unfunded Current Liability; that proceedings may be or have been
instituted to terminate or appoint a trustee to administer a Plan which is
subject to Title IV of ERISA; that a proceeding has been instituted pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Plan; that
Holdings, any Subsidiary of Holdings or any ERISA Affiliate will or may incur
any liability (including any indirect, contingent, or secondary liability) to or
on account of the termination of or withdrawal from a Plan under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under
Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or
502(l) of ERISA or with respect to a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code; or that Holdings or any Subsidiary of Holdings may incur any material
liability pursuant to any employee welfare benefit plan (as defined in Section
3(1) of ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any Plan.
SECTION 8. NEGATIVE COVENANTS. Each of Holdings and the
Borrower hereby covenants and agrees that for so long as this Agreement is in
effect and until such time as the Total Commitment has been terminated, no Notes
remain outstanding and the Loans, together with interest, Fees and all other
Obligations incurred hereunder are paid in full:
8.01 CHANGES IN BUSINESS. Holdings will not, and will not
permit the Borrower or any of its Subsidiaries to, engage in any significant
business or activities in any industries or business segments, other than the
business and activities conducted by Holdings and its Subsidiaries (taken as a
whole) on the Restatement Effective Date in the business segments and industries
described in [the Registration Statement,] and other businesses and activities
related or incidental thereto.
8.02 CONSOLIDATION, MERGER OR SALE OF ASSETS, ETC. Holdings
will not, and will not permit any Subsidiary to, wind up, liquidate or dissolve
its affairs, or enter into any transaction of merger or consolidation or sell or
otherwise dispose of any of its property or assets (but excluding any sale or
disposition of obsolete or excess FF&E or excess land in the ordinary course of
business), or purchase, lease or otherwise acquire (in one transaction or a
series of related transactions) all or any part of the property or assets of any
Person (excluding any purchases, leases or other acquisitions of property or
assets
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in, and for use in, the ordinary course of business) or agree to do any of the
foregoing at any future time, except that the following shall be permitted:
(a) capital expenditures by the Borrower and its
Subsidiaries;
(b) the investments permitted pursuant to Section 8.05;
(c) (i) the merger or consolidation of any Subsidiary
Guarantor (other than Capital Corp) with or into the Borrower or
another Subsidiary Guarantor (other than Capital Corp) or the
liquidation or dissolution of any Subsidiary that is not a Material
Subsidiary or a Specified Subsidiary or (ii) the transfer or other
disposition of any property (other than the Capital Note) by the
Borrower to any Subsidiary Guarantor or by any Subsidiary Guarantor to
the Borrower or any other Subsidiary Guarantor, provided that all Liens
granted pursuant to the Security Documents on any property or assets
involved in any of the foregoing transactions shall remain in full
force and effect (with the same priority as they would have if such
transfer pursuant to this clause (ii) had not occurred), either as a
result of any such transfer being made subject to such Liens or as a
result of the surviving or transferee entity executing and delivering
new Security Documents, in each case to the satisfaction of the
Administrative Agent;
(d) the Borrower or any Subsidiary Guarantor (other than
Capital Corp) (or to the extent limited to one Permitted Acquisition,
any NRD Borrower) may make Permitted Acquisitions provided that at
least 15 days prior to the date of such acquisition, the Borrower shall
have delivered to the Administrative Agent an officer's certificate
executed by an authorized officer of the Borrower, which certificate
shall (i) contain the date such Permitted Acquisition is scheduled to
be consummated, (ii) contained the estimated purchase price of such
Permitted Acquisition, (iii) contain a description of the property
and/or assets acquired in connection with such Permitted Acquisition
(including 12 months prior financial data relating thereto), (iv)
demonstrate that at the time of making any such Permitted Acquisition
the covenants contained in Sections 8.10, 8.11, 8.12, 8.13 and 8.14
shall be complied with on a PRO FORMA basis as if the properties and/or
assets so acquired had been owned by the Borrower, and the Indebtedness
assumed and/or incurred to acquire and/or finance same has been
outstanding, for the 12 month period immediately preceding such
acquisition (without giving effect to any credit for unobtained or
unrealized gains in connection with such Permitted Acquisition), (v) to
the extent applicable, confirms that the Borrower has performed
physical inspections, including, without limitation, Phase I
environmental assessments (a copy of which shall be delivered to the
Administrative Agent with such certificate), which demonstrate that the
representations and warranties of the Borrower contained in this
Agreement (including those set forth in Section 6.15)
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shall be true and correct after giving effect to such Permitted
Acquisition, (vi) except in the case of a Permitted Acquisition of a
Non-Managed Hotel, confirms that the hotel property acquired pursuant
to such Permitted Acquisition (or owned by the partnership in which
interests have been acquired or to which loans and/or advances have
been made pursuant to such Permitted Acquisition) is to be managed by
the Borrower and (vii) attach thereto a true and correct copy of the
then proposed purchase agreement or similar agreement, partnership
agreement, lease and/or management contract entered into in connection
with such Permitted Acquisition;
(e) the Borrower or any of its Subsidiaries may sell any hotel
property, land or building and/or any capital stock and/or equity
interests of any Person that owns such hotel property, land or
building, provided that after giving effect to such sale the covenants
contained in Sections 8.10, 8.11, 8.12, 8.13 and 8.14 shall be complied
with on a PRO FORMA basis as if such hotel property, land or building
so sold had not been owned by the Borrower and/or any of its
Subsidiaries for the 12- month period immediately preceding such sale;
(f) the Borrower or any of its Subsidiaries (other than an NRL
Subsidiary) may enter into leases of property or assets not
constituting Permitted Acquisitions in the ordinary course of business
not otherwise in violation of this Agreement and to the extent not
prohibited by Section 8.06(b);
(g) the Borrower and its Subsidiaries (other than any
Specified Subsidiary) may purchase or otherwise acquire any property or
assets of any Person (other than pursuant to Permitted Acquisitions),
PROVIDED that (x) such purchases or acquisitions are made with funds
other than the proceeds of Loans and Non-Recourse Debt, (y) no Default
or Event of Default exists at the time thereof or after giving effect
thereto and (z) after giving effect thereto, Section 8.01 is complied
with;
(h) the Borrower and its Subsidiaries may sell or discount
accounts receivable in the ordinary course of business consistent with
past practices, but only in connection with the collection or
compromise thereof, so long as the aggregate outstanding face amount of
accounts receivable sold or discounted at any time does not exceed
$5,000,000; and
(i) any NRL Subsidiary may enter into leases of hotel
properties in connection with obtaining, or as a method of effectively
obtaining, the benefits of (and entered in lieu of) a Management
Contract relating to the hotel properties which are the subject of such
leases, PROVIDED that any such lease shall not be guaranteed (or
otherwise supported) directly or indirectly by Holdings, the Borrower,
any Subsidiary Guarantor or any other Subsidiary (other than the NRL
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Subsidiary entering into same) except that (x) the documentation
governing any such lease may contain provisions relating to customary
indemnities from the Borrower or a Subsidiary Guarantor for fraud, use
of proceeds and environmental matters or as are otherwise reasonably
acceptable to the Administrative Agent and (y) the Borrower may incur
guaranties and other Contingent Obligations in respect of such leases
to the extent permitted by Section 8.04(f)(A)(z).
To the extent the Required Banks (or all of the Banks as shall be required by
Section 12.12) waive the provisions of this Section 8.02 with respect to the
sale, transfer or other disposition of any Collateral, or any Collateral is
sold, transferred or disposed of as permitted by this Section 8.02, (i) such
Collateral shall be sold, transferred or disposed of free and clear of the Liens
created by the respective Security Document; (ii) if such Collateral includes
all of the capital stock of a Subsidiary Guarantor, such capital stock shall be
released from the Pledge Agreement and such Subsidiary shall be released from
the Subsidiary Guaranty; and (iii) the Administrative Agent and the Collateral
Agent shall be authorized to take actions deemed appropriate by them in order to
effectuate the foregoing.
8.03 LIENS. Holdings will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of Holdings or any such Subsidiary whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable or notes with recourse to Holdings or
any of its Subsidiaries) or assign any right to receive income, or file or
permit the filing of any financing statement under the UCC or any other similar
notice of Lien under any similar recording or notice statute, except:
(a) Liens for taxes not yet delinquent or Liens for taxes
being contested in good faith and by appropriate proceedings for which
adequate reserves (in the good faith judgment of the management of
Holdings) have been established;
(b) Liens in respect of property or assets imposed by law
which were incurred in the ordinary course of business, such as
carriers', warehousemen's, materialmen's and mechanics' Liens and other
similar Liens arising in the ordinary course of business, which do not
in the aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of the
business of Holdings or any Subsidiary;
(c) Liens created by this Agreement or the other Credit
Documents;
(d) Liens in existence on the Initial Borrowing Date which (x)
are listed, and the property subject thereto on the Initial Borrowing
Date described, in Annex
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VI, without giving effect to any extensions or renewals thereof or (y)
are otherwise permitted under this Section 8.03;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.08;
(f) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money);
(g) Leases or subleases granted to others not interfering in
any material respect with the business of Holdings or any of its
Subsidiaries and any interest or title of a lessor under any lease not
in violation of this Agreement;
(h) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of Holdings or any of its Subsidiaries;
(i) Liens arising from financing statements regarding leases
not in violation of this Agreement;
(j) Liens securing Non-Recourse Debt to the extent such Liens
do not attach to any property or assets other than the property or
asset financed or refinanced by any such Debt;
(k) Liens created by virtue of Capitalized Lease Obligations,
PROVIDED that such Liens are only in respect of the property or assets
subject to, and secure only, the respective Capital Lease;
(l) Liens (x) placed upon equipment or machinery used in the
ordinary course of business of the Borrower, any Subsidiary Guarantor
(other than Capital Corp) or any NRD Borrower at the time of (or within
180 days after) the acquisition thereof by the Borrower, any such
Subsidiary Guarantor (other than Capital Corp) or any such NRD Borrower
to secure Indebtedness incurred to pay all or a portion of the purchase
price thereof, PROVIDED that the Lien encumbering the equipment or
machinery so acquired does not encumber any other asset of the Borrower
or any Subsidiary; or (y) existing on specific tangible assets at the
time
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acquired by the Borrower, any Subsidiary Guarantor (other than Capital
Corp) or any NRD Borrower or on assets of a Person at the time such
Person first becomes a Subsidiary of the Borrower, PROVIDED that (i)
any such Liens were not created at the time of or in contemplation of
the acquisition of such assets or Person by the Borrower or any of its
Subsidiaries, (ii) in the case of any such acquisition of a Person, any
such Lien attaches only to specific tangible assets of such Person and
not assets of such Person generally, (iii) the Indebtedness secured by
any such Lien does not exceed 100% of the fair market value of the
asset to which such lien attaches, determined at the time of the
acquisition of such asset or the time at which such Person becomes a
Subsidiary of the Borrower (except in the circumstances described in
clause (y) above to the extent such Liens constituted customary
purchase money Liens at the time of incurrence entered into in the
ordinary course of business) and (iv) the Indebtedness secured thereby
is permitted by Section 8.04(b);
(m) Permitted Encumbrances;
(n) Liens arising from the transactions permitted by Section
8.02(h) and attached only to the receivable so sold or discounted; and
(o) Liens securing lease obligations of an NRL Subsidiary
permitted pursuant to Section 8.02(i) to the extent such Liens do not
attach to any property or assets other than the property or assets
subject to such leases.
8.04 INDEBTEDNESS. Holdings will not, and will not permit any
of its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(b) Indebtedness incurred on or after the Initial Borrowing
Date of the Borrower, any Subsidiary Guarantor (other than Capital
Corp) or any NRD Borrower subject to Liens permitted by Section 8.03(l)
or constituting Capitalized Lease Obligations, PROVIDED that the
aggregate principal amount of such Indebtedness and Capitalized Lease
Obligations under all Capital Leases shall not exceed $6,000,000 at any
time outstanding;
(c) Existing Indebtedness that was outstanding on the Initial
Borrowing Date without giving effect to any subsequent extension,
renewal or refinancing thereof;
(d) Indebtedness of the Borrower under the Interest Rate
Agreements entered into pursuant to Section 7.10;
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(e) Indebtedness of (x) Holdings to the Borrower to the extent
the proceeds thereof are promptly utilized to pay administrative and
reporting costs, (y) the Borrower to Holdings or any Subsidiary
Guarantor or (z) any Subsidiary Guarantor to the Borrower or any other
Subsidiary Guarantor, PROVIDED that (x) such Indebtedness shall be
evidenced by a promissory note which shall be pledged to the Collateral
Agent pursuant to the Pledge Agreement and (y) no Indebtedness owing to
or by Capital Corp shall be permitted by this clause (e);
(f) Contingent Obligations of (A) the Borrower in respect of
(x) leases of real property entered into by the Borrower, (y)
obligations of any Subsidiary Guarantor permitted under this Agreement
and (z) leases entered into by any NRL Subsidiary permitted by Section
8.02(i) PROVIDED that the aggregate amount of the Contingent
Obligations permitted by this clause (z) shall not exceed $3,000,000,
(B) the Borrower or any Subsidiary in respect of any other Person
(other than in respect of indebtedness for borrowed money) arising as a
matter of applicable law because the Borrower or such Subsidiary is or
is deemed to be a general partner of such other Person and (C) the
Borrower and Holdings constituting guaranties of the NP Lease
Obligations of each of New Partnership and New Lessee at any time prior
to New Partnership and New Lessee, respectively, becoming a Subsidiary
Guarantor, in each case pursuant to agreements approved by the
Administrative Agent and in effect on the Restatement Effective Date or
as subsequently modified with the consent of the Administrative Agent;
(g) any NRD Borrower may incur indebtedness ("Non-Recourse
Debt") to finance or refinance a hotel property acquired pursuant to a
Permitted Acquisition, PROVIDED that (i) Non-Recourse Debt may only be
incurred on and after the date on which pro forma annual Consolidated
EBITDA of Holdings (after giving effect to all Permitted Acquisitions
then consummated or being consummated) first equals or exceeds
$70,000,000 (provided that Non-Recourse Debt (I) in excess of
$50,000,000 may only be incurred at a time when such pro forma
Consolidated EBITDA of Holdings exceeds $110,000,000 or (II) in excess
of $100,000,000 may only be incurred at a time when such pro forma
Consolidated EBITDA of Holdings exceeds $150,000,000), (ii)
Non-Recourse Debt shall not be guaranteed (or otherwise supported)
directly or indirectly by Holdings, the Borrower, any Subsidiary
Guarantor or any other Subsidiary (other than the NRD Borrower
incurring same) (except that the documentation governing any
Non-Recourse Debt may contain provisions relating to customary
indemnities from the Borrower or a Subsidiary Guarantor for fraud, use
of proceeds and environmental matters or as are otherwise reasonably
acceptable to the Administrative Agent), (iii) the principal amount of
any issue of Non-Recourse Debt shall not exceed 65% of the fair market
value of the property securing such Debt, determined at the time of the
acquisition of such property by a valuation firm of national standing
utilizing appraisal
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standards satisfying the Real Estate Appraisal Reform Amendments of The
Financial Institution Reform, Recovery and Enforcement Act of 1989, as
amended, and (iv) the aggregate principal amount of Non-Recourse Debt
incurred by all NRD Borrowers shall not exceed $140,000,000 at any time
outstanding;
(h) the Borrower or any Subsidiary Guarantor (other than
Capital Corp) may incur additional Indebtedness other than any guaranty
or other Contingent Obligation created in respect of Non-Recourse Debt
(except for the indemnities specifically referred to in clause (g)) in
an aggregate principal amount not to exceed $10,000,000 at any time
outstanding;
(i) the Borrower may incur Indebtedness evidenced by the
Capital Note as provided therein; and
(j) Permitted Subordinated Debt.
8.05 ADVANCES, INVESTMENTS AND LOANS. Holdings will not, and
will not permit any of its Subsidiaries to, lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any Person, except:
(a) Holdings or any of its Subsidiaries may invest in cash and
Cash Equivalents;
(b) the Borrower and its Subsidiaries may acquire and hold
receivables owing to them in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(c) loans and advances (x) to employees for business-related
travel expenses, moving expenses and other similar expenses, in each
case incurred in the ordinary course of business and (y) other than
loans described on Annex VII, to employees in an aggregate principal
amount not to exceed $8,000,000 at any time outstanding, shall be
permitted;
(d) to the extent allowed by Section 8.02(c), (d) or (g), and
the creation of Subsidiaries in compliance with Section 8.15 shall be
permitted;
(e) investments acquired by the Borrower or any of its
Subsidiaries (x) in exchange for any other investment held by the
Borrower or any such Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer
of such other investment or (y) as a result of a foreclosure by
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the Borrower or any of its Subsidiaries with respect to any secured
investment or other transfer of title with respect to any secured
investment in default;
(f) investments of the Borrower in Interest Rate Agreements
entered into pursuant to Section 7.10;
(g) Loans and advances permitted by Section 8.04(e) and/or
(i); and
(h) The investments (other than in Subsidiaries) outstanding
on the Initial Borrowing Date which are listed on Annex VII hereto
(without any increase thereto).
8.06 CAPITAL EXPENDITURES; LEASES. (a) The Borrower will not
permit the amount expended during any fiscal year for Consolidated Capital
Expenditures to be less than 3% (it being understood and agreed that up to 50%
of such amount may be in the form of a Reserve created during such fiscal year)
but not more than 6% of the aggregate revenues for such fiscal year of all
hotels owned or leased by the Borrower and its Subsidiaries.
(b) Holdings will not permit the aggregate payments
(including, without limitation, any property taxes paid by the Borrower and its
Subsidiaries (other than a Specified Subsidiary) as additional rent or lease
payments) by the Borrower and its Subsidiaries (other than a Specified
Subsidiary) on a consolidated basis under agreements in effect as of the Initial
Borrowing Date and/or entered into after the Initial Borrowing Date (including
any such agreement that is an extension, replacement, substitution, or renewal
of any agreement entered into prior to such date) to rent or lease any real or
personal property (exclusive of Capitalized Lease Obligations, NP Lease
Obligations and the HF Lease Obligations) to exceed $4,000,000 in any fiscal
year of Holdings.
8.07 PREPAYMENTS OF INDEBTEDNESS, MODIFICATIONS OF AGREEMENTS,
ETC. Holdings will not, and will not permit any of its Subsidiaries to:
(a) make (or give any notice in respect thereof) any voluntary
or optional payment or prepayment or redemption or acquisition for
value of (including, without limitation, by way of depositing with the
trustee with respect thereto money or securities before due for the
purpose of paying when due) or exchange of any Existing Indebtedness,
the Capital Note or any Permitted Subordinated Debt;
(b) amend or modify (or permit the amendment or modification
of) any of the terms or provisions of or terminate (other than any
scheduled termination in accordance with the terms thereof) (A) the
Capital Note and/or any document or agreement governing same or (B) in
any manner adverse to the interests of the
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Banks any documents or agreement governing any Existing Indebtedness,
the CGL Participation or any Permitted Subordinated Debt; and/or
(c) amend, modify or change in any manner materially adverse
to the interests of the Banks the certificate of incorporation
(including, without limitation, and in any event, by the filing of any
certificate of designation), partnership agreement, certificate of
formation or by-laws of any Credit Party, New Partnership, New Lessee
or SPC or enter into any new agreement with respect to the capital
stock or equity interests, as the case may be, of any Credit Party, New
Partnership, New Lessee or SPC (to the extent adverse to the interests
of the Banks).
8.08 DIVIDENDS, ETC. Holdings will not, and will not permit
any Subsidiary to declare or pay any dividends (other than, in the case of
Holdings, dividends payable solely in common stock of Holdings) or return any
capital to, its stockholders, equity holders, members or partners or authorize
or make any other distribution, payment or delivery of property or cash to its
stockholders, equity holders, members or partners, as such, or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for a consideration, any
shares of any class of its capital stock or equity or partnership interests or
membership interests now or hereafter outstanding (or any warrants for or
options or stock appreciation rights in respect of any of such shares), or set
aside any funds for any of the foregoing purposes, or permit any Subsidiary to
purchase or otherwise acquire for consideration any shares of any class of the
capital stock or equity or partnership interests or membership interests of
Holdings or any such Subsidiary, as the case may be, now or hereafter
outstanding (or any options or warrants or stock appreciation rights issued with
respect to such capital stock or membership interests or partnership interests)
(all of the foregoing "Dividends"), except that (i) any Subsidiary of the
Borrower may pay Dividends to the Borrower or to any Subsidiary Guarantor, (ii)
Capital Corp may pay cash Dividends to Holdings so long as Holdings shall
immediately utilize 100% of the proceeds thereof to (x) promptly pay when due
administrative and other customary operating costs and/or (y) make a capital
contribution to the Borrower and (iii) the Borrower may pay cash Dividends to
Holdings so long as Holdings shall immediately utilize 100% of the proceeds
thereof to pay when due administrative and other customary operating costs and
provided that the Interests Exchange will not violate this Section.
8.09 TRANSACTIONS WITH AFFILIATES. Holdings will not, and will
not permit any Subsidiary to, enter into any transaction or series of
transactions with any Affiliate (other than, in the case of a Subsidiary,
Holdings, the Borrower or a Subsidiary Guarantor) other than in the ordinary
course of business and on terms and conditions substantially as favorable to
Holdings or such Subsidiary as would be obtainable, in Holdings' reasonable
judgment, by Holdings or such Subsidiary at the time in a comparable
arm's-length trans-
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<PAGE> 61
action with a Person other than an Affiliate except (i) Management Contracts,
(ii) investments permitted by Section 8.06 and (iii) payments made pursuant to
Section 8.09.
8.10 LEVERAGE RATIOS. (a) The Borrower will not permit the
ratio of (i) Modified Senior Total Indebtedness as of a date set forth below to
(ii) Modified EBITDA for the Test Period ended on such date to be greater than
the ratio set forth opposite such date below:
<TABLE>
<CAPTION>
DATE RATIO
---- -----
<S> <C>
June 30, September 30 and
December 31, 1997 4.5:1
March 31, June 30, September 30
and December 31, 1998, March 31,
June 30, September 30 and
December 31, 1999 4.25:1
March 31, June 30, September 30
and December 31, 2000, March 31,
June 30, September 30 and
December 31, 2001 4.00:1
March 31, June 30, September 30
and December 31, 2002 3.75:1
March 31, 2003 and each
fiscal quarter thereafter 3.50:1
</TABLE>
(b) The Borrower will not permit the ratio of (i) Modified
Total Indebtedness as of a date set forth below to (ii) Modified EBITDA for the
Test Period ended on such date to be greater than the ratio set forth opposite
such date below:
<TABLE>
<CAPTION>
DATE RATIO
---- -----
<S> <C>
June 30, September 30 and
December 31, 1997 5.25:1
March 31, June 30, September 30
and December 31, 1998, March 31,
June 30, September 30 and
December 31, 1999 5.00:1
</TABLE>
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<PAGE> 62
<TABLE>
<S> <C>
March 31, June 30, September 30
and December 31, 2000, March 31,
June 30, September 30 and
December 31, 2001 4.75:1
March 31, June 30, September 30
and December 31, 2002 4.50:1
March 31, 2003 and each
fiscal quarter thereafter 4.25:1
</TABLE>
8.11 MINIMUM EBITDA. Holdings will not permit EBITDA of
Holdings for any Test Period ending on the last day of a fiscal quarter
described below to be less than the amount set forth opposite such fiscal
quarter:
<TABLE>
<CAPTION>
FISCAL QUARTER AMOUNT
-------------- ------
<S> <C>
Ending During 1997 $ 95,000,000
Ending During 1998 135,000,000
Ending During 1999 140,000,000
Ending During 2000 145,000,000
Ending During 2001 150,000,000
Ending During 2002 155,000,000
Ending Thereafter 160,000,000
</TABLE>
8.12 INTEREST COVERAGE. Holdings will not permit the Interest
Coverage Ratio for any Test Period ending on a date set forth below to be less
than the ratio set forth opposite such date:
<TABLE>
<CAPTION>
DATE RATIO
---- -----
<S> <C>
June 30, September 30
and December 31, 1997 2.50:1
March 31, 1998 and each
fiscal quarter thereafter 2.75:1
</TABLE>
8.13 CONSOLIDATED NET WORTH. Holdings will not permit
Consolidated Net Worth as of the end of any fiscal quarter of Holdings to be
less than an amount equal to the sum of (x) $190,000,000 plus (y) the aggregate
of 80% (70% for each fiscal quarter ending after December 31, 1998) of Holdings'
Consolidated Net Income, if positive, for
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<PAGE> 63
each fiscal quarter ending after the Initial Borrowing Date and on or prior to
the end of the fiscal quarter as of which Consolidated Net Worth is being
determined plus (z) 60% of each increase to the Consolidated Net Worth of
Holdings resulting from each public offering of the common stock of Holdings
after the Amendment Date.
8.14 DEBT SERVICE COVERAGE. (a) Holdings will not permit the
Debt Service Coverage Ratio for any Test Period ending on a date set forth below
to be less than the ratio set forth opposite such date:
<TABLE>
<CAPTION>
DATE RATIO
---- -----
<S> <C>
June 30, September 30 and
December 31, 1997 2.00:1
March 31, 1998 and each
fiscal quarter thereafter 2.25:1
</TABLE>
(b) Holdings will not permit the Adjusted Debt Service
Coverage for the Test Period ending on the last day of any fiscal quarter to be
less than 1.50:1.
8.15 CREATION OF SUBSIDIARIES. On and after the Restatement
Effective Date, Holdings will not, and will not permit any Subsidiary to, create
or acquire any Subsidiary other than (x) a Wholly-Owned Subsidiary that executes
a counterpart of the Subsidiary Guaranty, Pledge Agreement and Security
Agreement or (y) a Specified Subsidiary, to the extent, in each case, that 100%
of the capital stock of such entity (or, in the case of a Specified Subsidiary,
100% of the capital stock, membership interests and/or partnership interests of
such entity owned by Holdings and its Subsidiaries) is pledged to the Collateral
Agent pursuant to the Pledge Agreement, it being acknowledged and agreed by the
Banks that as of the Restatement Effective Date (x) each of New Lessee and New
Partnership is a Subsidiary of the Borrower although not a Wholly-Owned
Subsidiary or a Specified Subsidiary and (y) SPC is a Wholly-Owned Subsidiary
but is not a Credit Party. Upon an entity ceasing to be a Specified Subsidiary,
such entity, unless liquidated, shall become a Subsidiary Guarantor and execute
all documents required by the preceding and following sentences. In addition,
each new Subsidiary Guarantor created as permitted by this Section 8.15 (and New
Partnership and New Lessee on or promptly following the NP Guaranty Commencement
Date) shall execute and deliver, or cause to be executed, all other relevant
documentation of the type described in Section 5.01(m) of the Original Credit
Agreement as such Person would have had to deliver if such Person had been a
Credit Party on the Initial Borrowing Date.
8.16 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES.
Holdings will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise
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<PAGE> 64
cause or suffer to exist or become effective any encumbrance or restriction in
the ability of any such Subsidiary to (a) pay dividends or make any other
distributions on its capital stock or any other interest or participation in its
profits owned by Holdings or any Subsidiary of Holdings, or pay any Indebtedness
owed to Holdings or a Subsidiary of Holdings, (b) make loans or advances to
Holdings or any of Holdings' subsidiaries, or (c) transfer any of its property
or assets to Holdings or any of Holdings' Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (i) applicable law,
(ii) this Agreement and the other Credit Documents, (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest
of Holdings or a Subsidiary of Holdings, (iv) customary provisions restricting
assignment of any licensing agreement entered into by Holdings or any Subsidiary
of Holdings in the ordinary course of business, (v) customary provisions
restricting the transfer of assets subject to Liens permitted under Sections
8.03(j) and (l), (vi) customary provisions restricting assignment of any
Management Contract or Franchise Agreement (as defined in the Security
Agreement), (vii) restrictions governing any of the Non-Recourse Debt of an NRD
Borrower or any lease of an NRL Subsidiary and (viii) restrictions governing New
Partnership and/or New Lessee contained in their organizational documents (to
the extent reviewed by the Administrative Agent and in effect on the Restatement
Effective Date or as thereafter amended with the consent of the Administrative
Agent).
8.17 HOLDINGS. Holdings will not engage in any business or
activities other than the ownership of all of the capital stock of Capital Corp
and the Borrower and administrative and reporting activities entitled thereto.
Capital Corp will not engage in any business or activities other than holding
the Capital Note.
8.18 SPECIAL RESTRICTIONS. Notwithstanding any other provision
of this Agreement, Holdings will not, without the prior written consent of the
Administrative Agent, permit SPC or Miami Sub to (a) conduct any business or own
any assets, (b) incur any Indebtedness or Liens, (c) transfer, assign, sell or
dispose of any asset, (d) make any investment, loan or advance, (e) receive any
investment, loan or advance made by any Credit Party or any Subsidiary of
Holdings, (f) pay or declare any Dividend or (g) modify any of its
organizational documents except that (A) SPC may (i) own the SPC Voting
Interests and (ii) receive de minimis capital contributions and/or loans from
the Borrower for operating requirements and (B) Miami Sub may (i) own the Miami
Note and Miami Mortgage, (ii) receive de minimis capital contributions and/or
loans from the Borrower for operating purposes and (iii) pay Dividends to the
Borrower with the proceeds of interest payments received by Miami Sub on the
Miami Note.
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
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<PAGE> 65
9.01 PAYMENTS. The Borrower shall (i) default in the payment
when due of any principal of the Loans or any Florida recording taxes due at the
time of recordation of the Miami Sub Mortgage Assignment or (ii) default, and
such default shall continue for three or more Business Days, in the payment when
due of any interest on the Loans or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
9.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any statement or certificate delivered or required to be delivered pursuant
hereto or thereto shall prove to be untrue in any material respect on the date
as of which made or deemed made; or
9.03 COVENANTS. Holdings or the Borrower shall (i) default in
the due performance or observance by it of any term, covenant or agreement
contained in Section 7.10, 7.11 or 8 or (ii) default in the due performance or
observance by it of any term, covenant or agreement (other than those referred
to in Section 9.01, 9.02 or clause (i) of this Section 9.03) contained in this
Agreement and such default shall continue unremedied for a period of at least 30
days after notice by the Administrative Agent or the Required Banks; or
9.04 DEFAULT UNDER OTHER AGREEMENTS. (a) Holdings, the
Borrower or any of its Subsidiaries shall (i) default in any payment with
respect to any Indebtedness (other than the Obligations and/or any non-recourse
Indebtedness), and such default shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Indebtedness, or (ii) default in the observance or performance of any agreement
or condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto (and all grace periods
applicable to such observance, performance or condition shall have expired), or
any other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause any such Indebtedness to become due prior to its stated maturity; or (b)
any such Indebtedness of Holdings, the Borrower or any of its Subsidiaries shall
be declared to be due and payable, or shall be required to be prepaid (other
than by a regularly scheduled required prepayment or redemption or as a
mandatory prepayment or redemption (unless such required or mandatory prepayment
or redemption results from a default thereunder or an event of type that
constitutes an Event of Default hereunder)), PROVIDED that it shall not
constitute an Event of Default pursuant to this Section 9.04 unless the
aggregate amount of all Indebtedness referred to in clauses (a) and (b) above
exceeds $5,000,000 at any one time; or
9.05 BANKRUPTCY, ETC. Holdings, the Borrower or any of its
Material Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy," as now or hereafter in
effect, or any successor thereto
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<PAGE> 66
(the "Bankruptcy Code"); or an involuntary case is commenced against Holdings,
the Borrower or any of its Material Subsidiaries and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
Holdings, the Borrower or any of its Material Subsidiaries; or Holdings, the
Borrower or any of its Material Subsidiaries commences (including by way of
applying for or consenting to the appointment of, or the taking of possession
by, a rehabilitator, receiver, custodian, trustee, conservator or liquidator
(collectively, a "conservator") of itself or all or any substantial portion of
its property) any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency, liquidation,
rehabilitation, conservatorship or similar law of any jurisdiction whether now
or hereafter in effect relating to Holdings, the Borrower or any of its Material
Subsidiaries; or any such proceeding is commenced against Holdings, the Borrower
or any of its Material Subsidiaries to the extent such proceeding is consented
to by such Person or remains undismissed for a period of 60 days; or Holdings,
the Borrower or any of its Material Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Holdings, the Borrower or any of its Material
Subsidiaries suffers any appointment of any conservator or the like for it or
any substantial part of its property which continues undischarged or unstayed
for a period of 60 days; or Holdings, the Borrower or any of its Material
Subsidiaries makes a general assignment for the benefit of creditors; or any
corporate action is taken by Holdings, the Borrower or any of its Material
Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, any Plan
which is subject to Title IV of ERISA shall have had or is likely to have a
trustee appointed to administer such Plan, any Plan which is subject to Title IV
of ERISA is, shall have been or is likely to be terminated or to be the subject
of termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan has not
been timely made, Holdings, or any Subsidiary of Holdings or any ERISA Affiliate
has incurred or is likely to incur any liability to or on account of a Plan
under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a
group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2)
of the Code) under Section 4980B of the Code, or Holdings, or any Subsidiary of
Holdings has incurred or is likely to incur liabilities pursuant to one or more
employee welfare benefit plans (as defined in Section 3(1) of ERISA) that
provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or Plans; (b) there shall result from any such
event or events the imposition
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<PAGE> 67
of a lien, the granting of a security interest, or a liability or a material
risk of incurring a liability; and (c) such lien, security interest or
liability, individually, and/or in the aggregate, in the opinion of the Required
Banks, has had, or could reasonably be expected to have, a Material Adverse
Effect; or
9.07 SECURITY DOCUMENTS. (a) Any Security Document shall cease
to be in full force and effect (other than upon termination thereof in
accordance with its terms), or shall cease to give the Collateral Agent the
Liens purported to be created thereby in favor of the Collateral Agent or (b)
any Credit Party shall default in the due performance or observance of any
material term, covenant or agreement on its part to be performed or observed
pursuant to any Security Document and such default shall continue beyond any
cure or grace period specifically provided for in such Security Document; or
9.08 JUDGMENTS. One or more judgments or decrees shall be
entered against Holdings, the Borrower and/or any of its Subsidiaries involving
a liability (not paid or fully covered by insurance) of $5,000,000 or more in
the aggregate for all such judgments and decrees for Holdings, the Borrower and
its Subsidiaries and any such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 60 days from the entry
thereof; or
9.09 ENVIRONMENTAL MATTERS. Any Hazardous Materials shall have
been at any time (i) generated, used, treated or stored on, or transferred to or
from, any Real Property of Holdings or any of its Subsidiaries or (ii) released
on any such Real Property in violation of Environmental Laws, in each case where
such occurrence or event has had, or is reasonably likely to have, a Material
Adverse Effect; or
9.10 GUARANTY. Any Guaranty or Assumption, or any provision of
any thereof, shall cease to be in full force or effect, or any Guarantor or
Assuming Party, or any Person acting by or on behalf of such Guarantor or
Assuming Party, shall deny or disaffirm such Guarantor's obligations under such
Guaranty or Assuming Party's obligations under such Assumption, as the case may
be, or any Guarantor shall default in the due performance or observance of any
material term, covenant, or agreement on its part to be performed or observed
pursuant to the relevant Guaranty;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Banks, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent or any Bank to enforce its claims against the Borrower,
except as otherwise specifically provided for in this Agreement (PROVIDED that,
if an Event of Default specified in Section 9.05 shall occur with respect to the
Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving
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<PAGE> 68
of any such notice): (i) declare the Total Commitment terminated, whereupon the
Commitment of each Bank shall forthwith terminate immediately and any Commitment
Commission shall forthwith become due and payable without any other notice of
any kind; (ii) declare the principal of and any accrued interest in respect of
all Loans, all Unpaid Drawings and all obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; (iii) enforce, as Administrative Agent (or
direct the Collateral Agent to enforce), any or all of the Liens and security
interests created pursuant to the Security Documents; (iv) direct the escrow
agent under the Miami Sub Escrow to record the Miami Sub Mortgage Assignment (it
being agreed that the Required Banks may, without any action by the
Administrative Agent, direct such escrow agent to make such recordation at any
time); (v) terminate any Letter of Credit which may be terminated in accordance
with its terms; and (vi) direct the Borrower to pay (and the Borrower hereby
agrees that on receipt of such notice or upon the occurrence of an Event of
Default with respect to the Borrower under Section 9.05, it will pay) to the
Collateral Agent an amount of cash equal to the aggregate Stated Amount of all
Letters of Credit then outstanding (such amount to be held as security after the
Borrower's reimbursement obligations in respect thereof).
SECTION 10. DEFINITIONS. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acknowledgement" shall have the meaning provided in
Section 5.01(g).
"Acquisition Loans" shall mean Revolving Loans the proceeds of
which are utilized to make Permitted Acquisitions or to refinance loans or
advances the proceeds of which were utilized to make Permitted Acquisitions.
"Acquisition Sublimit" shall mean at any time the Total
Revolving Commitment at such time less $5,000,000.
"Additional Security Documents" shall have the meaning
provided in Section 7.11.
"Adjusted Debt Service Coverage Ratio" shall mean, for any
Test Period, the ratio of (x) Adjusted EBITDA to (y) Adjusted Total Debt
Service, in each case for such Test Period.
"Adjusted EBITDA" shall mean for any period, the sum of (x)
EBITDA of Holdings for such period plus (y) Total Lease Expense for such period
to the extent deducted in determining such EBITDA.
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<PAGE> 69
"Adjusted Total Debt Service" shall mean, for any period, the
sum of (x) Total Debt Service for such period plus (y) Total Lease Expense for
such period.
"Administrative Agent" shall have the meaning provided in the
first paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to control a
second Person if such first Person possesses, directly or indirectly, the power
(i) to vote 10% or more of the securities having ordinary voting power for the
election of directors or managers of such second Person or (ii) to direct or
cause the direction of the management and policies of such second Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agreement" shall mean this Amendment and Restatement to
Credit Agreement, as the same may be from time to time further modified, amended
and/or supplemented.
"Amendment" shall mean the Amendment dated as of October 21,
1996 to the Original Credit Agreement.
"Amendment Date" shall mean the date on which the Amendment
became effective in accordance with its terms (I.E., October 30, 1996).
"Applicable Base Rate Margin" shall mean (i) for Term C Loans,
1.25% and (ii) for all other Loans, 1.00% MINUS the then applicable Margin
Reduction Discount.
"Applicable CC Percentage" shall mean (i) .375% at any time
the Applicable Eurodollar Margin (Revolving Loans) is 1.75% or higher and (ii)
.250% at all other times.
"Applicable Eurodollar Margin" shall mean (i) for Term C
Loans, 2.25% and (ii) for all other Loans, 2.00% MINUS the then applicable
Margin Reduction Discount.
"Applicable Eurodollar Margin (Revolving Loans)" shall mean at
any time the then Applicable Eurodollar Margin applicable to Revolving Loans.
"Asset Sale" shall mean the sale, transfer or other
disposition (including by liquidations of a partnership of the interests therein
of the Borrower or any Subsidiary) by the Borrower or any Subsidiary to any
Person other than the Borrower or any Subsidiary Guarantor of any of their
respective assets (other than (i) sales, transfers or other dispositions of
obsolete or excess FF&E in the ordinary course of business and (ii) sales,
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<PAGE> 70
transfers or other dispositions with Net Cash Proceeds aggregating no more than
$500,000 in any fiscal year).
"Assignment Agreement" shall mean an Assignment Agreement
substantially in the form of Exhibit J hereto.
"Assuming Party" shall mean each of New Partnership and New
Lessee as party to an Assumption.
"Assumption" shall mean each of the assumption agreements
executed by New Lessee and by New Partnership prior to the Restatement Effective
Date, as the same may be amended, modified or supplemented with the consent of
the Administrative Agent.
"Authorized Officer" shall mean any executive officer of
Holdings or the Borrower, as the case may be, designated as such in writing to
the Administrative Agent by Holdings or the Borrower, respectively, to the
extent acceptable to the Administrative Agent.
"Bank" shall have the meaning provided in the first paragraph
of this Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of Loans or
to fund its portion of any unreimbursed payment under Section 2.04(c) or (ii) a
Bank having notified the Administrative Agent and/or the Borrower that it does
not intend to comply with the obligations under Section 1.01 and/or Section
2.04(c), in the case of either (i) or (ii) as a result of the appointment of a
receiver or conservator with respect to such Bank at the direction or request of
any regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section
9.05.
"Base Rate" shall mean the higher of (x) the rate established
by the Administrative Agent from time to time as the reference rate for short
term commercial loans in U.S. dollars and (y) 1/2 of 1% in excess of the
overnight cost of funds of the Administrative Agent (as determined by the
Administrative Agent in its sole discretion).
"Base Rate Loan" shall mean each Loan bearing interest at the
rates provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
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"Borrowing" shall mean the incurrence of one Type of Loan
pursuant to a single Facility by the Borrower from all of the Banks having
Commitments with respect to such Facility on a PRO RATA basis on a given date
(or resulting from conversions on a given date), having in the case of
Eurodollar Loans the same Interest Period, PROVIDED that Base Rate Loans
incurred pursuant to Section 1.10(b) shall be considered part of any related
Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in U.S. dollar deposits in the interbank Eurodollar market.
"C Maturity Date" shall mean June 25, 2004.
"Capital Corp" shall mean IHC Capital Corporation, a Delaware
corporation.
"Capital Lease" as applied to any Person shall mean any lease
of any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of that Person.
"Capital Note" shall mean the subordinated promissory note
issued by the Borrower and payable to Capital Corp in an aggregate principal
amount equal to the net proceeds of the initial public offering of Holdings
common stock effected at or prior to the Initial Borrowing Date, which Capital
Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement
to which Capital Corp is party.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of the Borrower or any of its Subsidiaries in each case
taken at the amount thereof accounted for as liabilities in accordance with
GAAP.
"Cash Equivalents" shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (PROVIDED that the full faith and credit of
the United States of America is pledged in support thereof) having maturities of
not more than one year from the date of acquisition, (ii) U.S. dollar
denominated time deposits, certificates of deposit and bankers' acceptances of
(x) any Bank or (y) any bank whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from Moody's is at least P-1 or the
equivalent thereof (any such bank, an "Approved Bank"), in each case with
maturities of not more
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than one year from the date of acquisition, (iii) commercial paper issued by any
Bank or Approved Bank or by the parent company of any Bank or Approved Bank and
commercial paper issued by, or guaranteed by, any industrial or financial
company with a short-term commercial paper rating of at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's,
or guaranteed by any industrial company with a long term unsecured debt rating
of at least A or A2, or the equivalent of each thereof, from S&P or Moody's, as
the case may be, and in each case maturing within one year after the date of
acquisition and (iv) investments in money market funds substantially all the
assets of which are comprised of securities of the types described in clauses
(i) through (iii) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale,
the aggregate cash payments (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such Asset Sale,
other than the portion of such deferred payment constituting interest, but only
as and when so received) received by Holdings, the Borrower and/or any
Subsidiary from such Asset Sale.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 ET SEQ.
"CGL" shall mean Interstone/CGL Partners, L.P., a Delaware
Limited Partnership.
"CGL Participation" shall have the meaning provided in the
Original Credit Agreement.
"Change of Control" shall mean and include (i) during any
period of two consecutive calendar years, individuals who at the beginning of
such period constituted Holdings' Board of Directors (together with any new
directors whose election by Holdings' Board of Directors or whose nomination for
election by Holding's shareholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the beginning
of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the directors then in
office, (ii) any Person or group (as such term is defined in Section 13(d)(3) of
the 1934 Act), other than the Fine Family, shall acquire, directly or
indirectly, beneficial ownership (within the meaning of Rule 13d-3 and 13d-5 of
the 1934 Act) of 30% or more, on a fully diluted basis, of the economic or
voting interest in Holdings' capital stock and/or (iii) any "change in control"
or any similar term as defined in any of the indentures, agreements or
instruments governing any Indebtedness of Holdings or any of its Subsidiaries.
"Clean-Down Period" shall mean a 30 consecutive day period
which shall commence on or after July 1 of each year and terminate on or before
June 30 of the follow-
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ing year during which the sum of the aggregate outstanding principal amount of
Working Capital Loans plus the Letter of Credit Outstandings do not exceed
$10,000,000 at any time during such period.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder. Section references to the Code are to the Code, as in effect
at the Effective Date and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in
each of the Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Banks pursuant to the Security Documents.
"Commitment" shall mean, with respect to each Bank, such
Bank's Term A Commitment, Term B Commitment, Term C Commitment and Revolving
Commitment, in each case if any.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Companies" shall mean and include Trust Leasing, Inc. and
Trust Management, Inc., each a Tennessee corporation.
"Consolidated Capital Expenditures" shall mean all
expenditures made by the Borrower and its Subsidiaries for the maintenance of
properties in the ordinary course (and not in connection with acquisitions or
major expansion/renovation programs).
"Consolidated Net Income" shall mean for any Person for any
period, the net income (or loss), without deduction for minority interests, of
such Person and its Subsidiaries on a consolidated basis for such period taken
as a single accounting period determined in conformity with GAAP, PROVIDED that
there shall be excluded (i) the income (or loss) of any entity (other than a
Subsidiary) in which any other Person (other than such first Person or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to such first Person or any of
its Subsidiaries by any such entity during such period, (ii) the income (or
loss) of any entity accrued prior to the date it becomes a Subsidiary or is
merged into or consolidated with such first Person or any of its Subsidiaries or
on which its assets are acquired by such first Person or any of its Subsidiaries
and (iii) the income of any Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by that
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Subsidiary of that income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary.
"Consolidated Net Worth" shall mean at any time for the
determination thereof all amounts which, in conformity with GAAP, would be
included under the caption "total stockholders' equity" (or any like caption) on
a consolidated balance sheet of Holdings as at such date.
"Contingent Obligations" shall mean as to any Person any
obligation of such Person guaranteeing any Indebtedness, leases, dividends or
other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (a) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation, or (d) otherwise to assure or hold harmless the owner of such
primary obligation against loss in respect thereof, PROVIDED, HOWEVER, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Notes, the
Security Documents, the Assumptions, the Acknowledgement and the Subsidiary
Guaranty.
"Credit Event" shall mean the making of any Loans and/or the
issuance of any Letter of Credit.
"Credit Lyonnais" shall mean Credit Lyonnais New York Branch.
"Credit Party" shall mean Holdings, the Borrower and each
Subsidiary Guarantor.
"Debt Service Coverage Ratio" shall mean, for any Test Period,
the ratio of (x) EBITDA of Holdings to (y) the Total Debt Service, in each case
for such Test Period.
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"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Dividends" shall have the meaning provided in Section 8.08.
"EBIT" shall mean, for any Person for any period, (A) the sum
of the amounts for such period for such Person of (i) Consolidated Net Income,
(ii) provisions for taxes based on income, (iii) Total Interest Expense, (iv)
amortization or write-off of deferred financing costs to the extent deducted in
determining Consolidated Net Income and (v) losses on sales of assets (excluding
sales in the ordinary course of business) and other extraordinary losses and
other one-time non-cash charges LESS (B) gains on sales of assets (excluding
sales in the ordinary course of business) and other extraordinary gains and
other one-time non-cash gains, all as determined for such Person and its
Subsidiaries on a consolidated basis in accordance with GAAP.
"EBITDA" shall mean, for any Person for any period, the sum of
the amounts for such period for such Person of (i) EBIT, (ii) depreciation
expense, (iii) amortization expense and (iv) any other non-cash charges, all as
determined for such Person and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution or other "accredited investor" (as defined in SEC
Regulation D), in each case which is not a direct competitor of the Borrower or
engaged in the same or similar business as the Borrower, or any of its
respective Subsidiaries or is not an Affiliate of any such competitors of the
Borrower or any of its respective Subsidiaries.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any Environmental Law or any permit issued under any such law
(hereafter "Claims"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline,
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binding and enforceable written policy or any rule of common law, and any
binding and enforceable judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment
issued to or rendered against the Borrower or any of its Subsidiaries (in each
of the foregoing cases, now or hereafter in effect and as amended) relating to
the environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 ET SEQ.; the Clean Air Act, 42 U.S.C. Section 7401 ET SEQ.;
the Safe Drinking Water Act, 42 U.S.C. Sections 300f ET SEQ.; the Oil Pollution
Act of 1990, 33 U.S.C. Section 2701 ET SEQ.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 ET SEQ.; the Toxic
Substances Control Act, 15 U.S.C. Section 7401 ET SEQ.; and the Occupational
Safety and Health Act, 29 U.S.C. Section 651 ET SEQ. (to the extent it regulates
occupational exposure to Hazardous Materials); and any state and local or
foreign counterparts or equivalents, in each case as now or hereafter in effect
and as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the Effective Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with Holdings or a Subsidiary of Holdings
would be deemed to be a "single employer" (i) within the meaning of Section
414(b),(c), (m) or (o) of the Code or (ii) as a result of Holdings or a
Subsidiary of Holdings being or having been a general partner of such person.
"Eurodollar Loans" shall mean each Loan bearing interest at
the rates provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest
Period for a Eurodollar Loan, (A) (i) the rate for deposits in U.S. Dollars for
a period equal to such Interest Period which appears on the Telerate Page 3750
as of 11:00 A.M. London time, on the day that is two Business Days prior to the
commencement of such Interest Period or (ii) in the event that the Eurodollar
Rate can not be determined pursuant to the preceding clause (i) (and, in any
event, in respect of all Borrowings of Eurodollar Loans on the Restatement
Effective Date), the offered quotation to first-class banks in the interbank
Eurodollar market by the Administrative Agent for dollar deposits of amounts in
same day funds comparable to the outstanding principal amount of the Eurodollar
Loan of the Administrative Agent for which an interest rate is then being
determined with maturities comparable to the Interest Period to be applicable to
such Eurodollar Loan, determined as of 11:00 A.M. (London time) on the date
which is two Business Days prior to the
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commencement of such Interest Period, in each case divided (and rounded upward
to the next whole multiple of 1/16 of 1%) by (B) a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in respect
of Eurocurrency liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in
Section 9.
"Excess Cash Flow" shall mean, for any period, (x) EBITDA for
such period less (y) the sum, without duplication, of the amount for such period
of (i) Total Interest Expense, (ii) provisions for taxes based on income, (iii)
Consolidated Capital Expenditures other than any thereof made from a Reserve
established prior to such period, (iv) all scheduled principal payments on Total
Indebtedness (including all Scheduled Repayments), (v) all partnership
distributions made by any Subsidiary of the Borrower to any entity that is not a
wholly-owned direct or indirect Subsidiary of the Borrower and (vi) any Reserve
created (including any increase to an existing Reserve) during such period.
"Existing Indebtedness" shall have the meaning provided in
Section 6.18.
"Existing Letter of Credit" shall have the meaning provided in
Section 2.01(d).
"Existing Mortgage" shall mean each Mortgage, as defined in
the Original Credit Agreement, that remains in effect immediately prior to the
Restatement Effective Date.
"Existing Mortgage Policies" shall mean the Mortgage Policies,
as defined in the Original Credit Agreement, relating to the Existing Mortgages.
"Facility" shall mean either of the credit facilities
established under this Agreement, I.E., the Term A Facility, the Term B
Facility, the Term C Facility or the Revolving Facility.
"Facing Fee" shall have the meaning provided in
Section 3.01(c).
"Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quota-
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tions for such day on such transactions received by the Administrative Agent
from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred
to in, Section 3.01.
"FF&E" shall mean furniture, fixtures and equipment.
"Fine" shall mean Milton Fine, individually and in his
capacity as trustee of the Fine Revocable Trust.
"Fine Children Trust" shall mean the three irrevocable trusts
established pursuant to that certain single Irrevocable Trust Agreement, dated
December 15, 1989, for the benefit respectively of the grantors thereof made
among Carolyn Fine Freidman, Sibyl A. Fine King and David J. Fine, as grantors,
and David J. Fine, as trustee.
"Fine Family" shall mean, collectively, Fine and the Fine
Children Trust.
"Fine Revocable Trust" shall mean the revocable trust
established pursuant to that certain Second Amended and Restated Trust
Agreement, dated November 11, 1994, for the benefit of Milton Fine.
"GAAP" shall mean generally accepted accounting principles in
the United States of America as in effect from time to time; it being understood
and agreed that determinations in accordance with GAAP for purposes of Section
8, including defined terms as used therein, are subject (to the extent provided
therein) to Section 12.07(a).
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GP" shall mean Crossroads/Memphis Company, L.L.C., a Delaware
limited liability company and the sole general partner of New Partnership and an
indirect Wholly-Owned Subsidiary of the Borrower.
"Guaranties" shall mean the guaranty provided by Holdings
pursuant to Section 13 of this Agreement and the Subsidiary Guaranty.
"Guarantor" shall mean Holdings and each Subsidiary Guarantor.
"Hazardous Materials" shall mean (a) any petrochemical or
petroleum products, radioactive materials, asbestos in any form that is or could
become friable, urea
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formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
and (b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
"restricted hazardous materials," "extremely hazardous wastes," "restrictive
hazardous wastes," "toxic substances," "toxic pollutants," "contaminants" or
"pollutants," or words of similar meaning and regulatory effect under any
applicable Environmental Law.
"HF Lease Obligations" shall mean all obligations of
Subsidiaries under leases in effect as of the Restatement Effective Date (and
renewals and extensions thereof) with Host Funding, Inc. (or one of its
Subsidiaries) as lessor.
"Highest Lawful Rate" shall mean, with respect to any
indebtedness owed to any Bank hereunder or under any other Credit Document, the
maximum nonusurious interest rate, if any, that at any time or from time to time
may be contracted for, taken, reserved, charged or received by such Bank with
respect to such indebtedness under the law applicable to any such indebtedness
that is extended by such Bank provided that if there is no such maximum rate for
any Bank then the provisions of Section 12.17 shall be inapplicable to such Bank
and its Loans and the obligations owed it hereunder and under the other Credit
Documents.
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"IHC" shall mean Interstate Hotels Corporation, a Pennsylvania
corporation.
"Indebtedness" of any Person shall mean without duplication
(i) all indebtedness of such Person for borrowed money, (ii) the deferred
purchase price of assets or services which in accordance with GAAP would be
shown on the liability side of the balance sheet of such Person, (iii) the face
amount of all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder, (iv) all Indebtedness of a
second Person secured by any Lien on any property owned by such first Person,
whether or not such indebtedness has been assumed, (v) all Capitalized Lease
Obligations of such Person, (vi) all obligations of such Person to pay a
specified purchase price for goods or services whether or not delivered or
accepted, I.E., take-or-pay and similar obligations, (vii) all net obligations
of such Person under Interest Rate Agreements and (viii) all Contingent
Obligations of such Person, provided that Indebtedness shall not include trade
payables and accrued expenses, in each case arising in the ordinary course of
business.
"Initial Borrowing Date" shall have the meaning provided in
the Original Credit Agreement.
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"Interest Coverage Ratio" shall mean, for any Test Period, the
ratio of (x) EBITDA of Holdings to (y) Total Interest Expense of Holdings, in
each case for such Test Period.
"Interest Period" with respect to any Loan shall mean the
interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, any interest rate cap agreement, any interest rate collar agreement
or other similar agreement or arrangement designed to protect against
fluctuations in interest rates.
"Interests Exchange" shall mean the exchange or exchanges of
the Companies' limited partnership interests in New Partnership for common stock
of Holdings as provided for in the NP Acquisition Documents.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Legal Requirements" shall mean all applicable laws, rules,
orders and regulations made by any legislature or government or any governmental
body or regulatory authority having jurisdiction over Holdings or a Subsidiary.
"Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Issuer" shall mean (i) Credit Lyonnais, (ii)
in respect of each Existing Letter of Credit, the Bank that has issued same as
of the Restatement Effective Date and/or (iii) such other Bank that is
requested, and agrees, to so act by the Borrower and reasonably acceptable to
the Administrative Agent.
"Letter of Credit Outstandings" shall mean, at any time, the
sum, without duplication, of (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean as at any Relevant Determination
Date, the ratio of (i) Modified Total Indebtedness as of such date to (ii)
Modified EBITDA for the Test Period ended on such date.
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"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"Loan" shall have the meaning provided in Section 1.01.
"Management Contracts" shall mean the management contracts
relating to hotels managed by Holdings or any of its Subsidiaries.
"Margin Reduction Discount" shall mean zero, provided that the
Margin Reduction Discount shall be increased to .25%, .50%, .625% or .75%, as
the case may be, as specified in clauses (i), (ii), (iii) or (iv) below, at any
time after the Restatement Effective Date, when, and for so long as, the ratio
set forth in such clause has been satisfied as at the Relevant Determination
Date:
(i) the Margin Reduction Discount shall be .25% in the event
that at the Relevant Determination Date the Leverage Ratio is equal to
or greater than 3.75 to 1 but less than 4.0 to 1;
(ii) the Margin Reduction Discount shall be .50 % in the event
that as at the Relevant Determination Date the Leverage Ratio is equal
to or greater than 3.5 to 1 but less than 3.75 to 1;
(iii) the Margin Reduction Discount shall be .625% in the event
that as at the Relevant Determination Date the Leverage Ratio is equal
to or greater than 2.5 to 1 but less than 3.5 to 1; or
(iv) the Margin Reduction Discount shall be .75% in the event
that as at the Relevant Determination Date the Leverage Ratio is less
than 2.5 to 1.
The Leverage Ratio shall be determined (x) for the last day of March, 1997, by
delivery of an officer's certificate of the Borrower to the Administrative Agent
on the Restatement Effective Date; (y) for the last day of a fiscal quarter or
year, by delivery of an officer's certificate of the Borrower to the Banks
pursuant to Section 7.01(d)(i); and (z) for the date of the consummation of any
Permitted Acquisition (in whole or in part) that is effected (in whole or in
part) by the incurrence of Indebtedness by the Borrower or any Subsidiary after
delivery of the officer's certificate referred to in clause (x), by delivery of
an officer's certificate of the Borrower to the Banks pursuant to Section
7.01(d)(iii), in each case setting forth the calculation of the Leverage Ratio.
The Margin Reduction Discount so determined shall apply, except as set forth
below, from the date on which such officer's certificate is delivered to the
Administrative Agent to the earlier of (x) the date on which the next
certificate is delivered to the Administrative Agent pursuant to Section
7.01(d)(i) or
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7.01(d)(iii), as the case may be, and (y) the 45th day (90th day in the case
where the next Section 7.01(d)(i) certificate is to be delivered with year end
financials) following the end of the fiscal quarter in which such first
certificate was delivered to the Administrative Agent.
Notwithstanding anything to the contrary contained above, the Margin Reduction
Discount shall be zero (x) if no officer's certificate has been delivered to the
Banks pursuant to Section 7.01(d) which correctly sets forth the Leverage Ratio
for the Relevant Determination Date or the financial statements upon which any
such calculations are based have not been delivered, until such a certificate
and/or financial statements are delivered and (y) at all times when there shall
exist a violation of Section 9.01 or an Event of Default. It is understood and
agreed that the Margin Reduction Discount as provided above shall in no event be
cumulative and only the Margin Reduction Discount applicable under either clause
(i), (ii), (iii) or (iv), if any, contained in this definition shall be
applicable.
"Margin Stock" shall have the meaning provided in
Regulation U.
"Material Adverse Effect" shall mean a material adverse effect
on the business, operations, property, assets, liabilities, condition (financial
or otherwise) or prospects of Holdings and its Subsidiaries taken as a whole.
"Material Subsidiary" shall mean, at any time, any Subsidiary
of the Borrower that (x) has assets at such time comprising 5% or more of the
consolidated assets of the Borrower and its Subsidiaries or (y) had net income
in the most recently ended fiscal year of the Borrower comprising 5% or more of
the consolidated net income of the Borrower and its Subsidiaries for such fiscal
year.
"Member" shall mean IHC Member Corporation, a Delaware
corporation.
"Miami Mortgage" shall mean the consolidated mortgage on the
Miami Westin hotel property securing the Miami Note, as in effect on the
Restatement Effective Date and as the same may be amended with the consent of
the Administrative Agent.
"Miami Note" shall mean the restated promissory note executed
by the owner of the Miami Westin hotel property in a principal amount of $36
million, as in effect on the Restatement Effective Date and as the same may be
amended with the consent of the Administrative Agent.
"Miami Sub" shall mean IHC Miami Mortgage Corporation, a
Delaware corporation.
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"Miami Sub Escrow" shall mean the escrow arrangements relating
to the Miami Sub Mortgage Assignment in effect on the Restatement Effective
Date.
"Miami Sub Mortgage Assignment" shall mean the assignment by
Miami Sub of the Miami Mortgage that has been placed in the Miami Sub Escrow as
of the Restatement Effective Date.
"Minimum Borrowing Amount" shall mean (i) for Base Rate Loans,
$1,000,000 and (ii) for Eurodollar Loans, $5,000,000.
"Modified EBITDA" shall mean, for any period, the sum of (i)
EBITDA of Holdings for such period and (ii) the aggregate of the EBITDA of any
business, asset or Person acquired during such period pursuant to a Permitted
Acquisition for the portion of such period prior to the consummation of such
Permitted Acquisition but only to the extent such business or asset is acquired
directly by the Borrower or any Subsidiary or such Person becomes a Subsidiary
of, or is merged into, the Borrower.
"Modified Senior Total Indebtedness" shall mean at any time
(x) Modified Total Indebtedness at such time less (y) the outstanding principal
amount of Permitted Subordinated Debt at such time.
"Modified Total Indebtedness" shall mean at any time (i) Total
Indebtedness less (ii) the outstanding principal amount up to $30,000,000 in the
aggregate of Non-Recourse Debt included in determining Total Indebtedness.
"Moody's" shall mean Moody's Investors Service, Inc. and its
successors.
"Mortgage" shall have the meaning provided in Section
7.11(a)(ii) and, after the execution and delivery thereof, shall include each
mortgage constituting an Additional Security Document.
"Mortgage Policies" shall have the meaning provided in Section
7.11(a)(ii).
"Mortgaged Property" shall mean all Real Property subject to
Mortgages on the Restatement Effective Date and, after the execution and
delivery of any mortgage or deed of trust constituting an Additional Security
Document, shall include the respective Real Property subject thereto but shall
not include after the date of such release any Real Property theretofore a
Mortgaged Property that has been released from the Liens of the Security
Documents in accordance with the terms thereof or of this Agreement.
"Net Cash Proceeds" shall mean, with respect to any Asset
Sale, the Cash Proceeds resulting therefrom net of (i) reasonable and customary
expenses of sale incurred
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in connection with such Asset Sale, and other reasonable and customary fees
(other than any commission paid or payable to Holdings or any of its
Subsidiaries) and expenses incurred, and all state, and local taxes paid or
reasonably estimated to be payable by such Person, as a consequence of such
Asset Sale and the payment of principal, premium and interest of Indebtedness
secured by the asset which is the subject of the Asset Sale and required to be,
and which is, repaid under the terms thereof as a result of such Asset Sale,
(ii) amounts of any distributions payable to holders of minority interests in
the relevant Person or in the relevant property or assets and (iii) incremental
income taxes paid or payable as a result thereof.
"New Lessee" shall mean Crossroads/Memphis Financing Company,
LLC, a limited liability company (x) in which New Partnership owns all the
equity interests and (y) in respect of which SPC owns the SPC Voting Interests.
"New Lessee Leases" shall mean the leases by New Lessee, as
lessee, of 23 hotel properties from EQI Financing Partnership I, L.P., as
lessor, in the form approved by the Administrative Agent prior to the
Restatement Effective Date and as the same may be amended, modified or
supplemented with the consent of the Administrative Agent.
"New Partnership" shall mean Crossroads/Memphis Partnership,
L.P., a limited partnership in which the sole general partner is GP and the sole
limited partners are the Companies, or any successor thereto in which the
Borrower and the Subsidiary Guarantors are the sole partners and/or
shareholders.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Non-Defaulting Bank" shall mean each Bank other than a
Defaulting Bank.
"Non-Managed Hotel" shall mean the Marriott property located
at Tysons Corner, Virginia and one other hotel property acquired by the Borrower
or a Subsidiary Guarantor after the Initial Borrowing Date and identified at the
time of acquisition as a Non-Managed Hotel by the Borrower to the Administrative
Agent, PROVIDED that such identified Non-Managed Hotel shall be managed by the
Borrower or any of its Subsidiaries from and after the first anniversary of the
consummation of the acquisition of such hotel property.
"Non-Recourse Debt" shall have the meaning provided in Section
8.04(g).
"Note" shall mean and include each Term Note and each
Revolving Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
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"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent at 1301 Avenue of the Americas, New York, New York 10019, Attention:
Mischa Zabotin, or such other office as the Administrative Agent may designate
to the Borrower from time to time.
"NP Acquisition Documents" shall mean all the agreements and
related documents executed in connection with the consummation of all components
of the acquisition of New Partnership in the form delivered to the
Administrative Agent on or prior to the Amendment Date, and as amended, modified
or supplemented with the consent of the Administrative Agent.
"NP Guaranty Commencement Date" shall mean the date on which
the Subsidiary Guaranty, Pledge Agreement and Security Agreement become
effective with respect to New Partnership and to New Lessee as set forth in the
Assumptions executed by New Partnership and New Lessee, I.E., the date, if any,
on which New Partnership becomes a Wholly-Owned Subsidiary.
"NP Lease Obligations" shall mean and include (i) all
obligations of New Partnership and/or Crossroads Future Company, LLC (as lessee)
under leases (including any master lease) with Equity Inns Partnership, L.P. and
(ii) all obligations of New Lessee under the New Lessee Leases.
"NRD Borrower" shall mean each corporation, limited liability
company or limited partnership (i) at least 94% of the capital stock, or the
value of the membership interests or partnership interests, of which is directly
owned by the Borrower (provided that the general partner interests in any such
limited partnership, may be owned by the respective NRD-GP and the limited
partnership interests in any such limited partnership may be owned by IHC Realty
Partnership, L.P.), (ii) that owns one (but not more than one) hotel property
acquired pursuant to a Permitted Acquisition and (iii) that incurs Non-Recourse
Debt to finance or refinance the acquisition of the property discussed in clause
(ii) above, PROVIDED that (x) if a partnership, the sole general partner (the
"NRD-GP") shall be a corporation that is a direct Wholly-Owned Subsidiary of the
Borrower that has the sole management of such partnership and neither Holdings
nor any of its Subsidiaries (other than such NRD-GP) shall have any liability
for the obligations of such partnership or such general partner (other than
customary indemnities as set forth in Section 8.04(g)) and (y) upon the
repayment in full of such Non-Recourse Debt (other than from the proceeds of
refinancing Non-Recourse Debt), such corporation, limited liability company or
partnership shall cease to be an NRD Borrower.
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"NRL Subsidiary" shall mean each corporation, limited
liability company or limited partnership (i) at least 94% of the capital stock,
or the value of the membership interests or partnership interests, of which is
directly owned by the Borrower (provided that the general partner interests in
any such limited partnership, may be owned by the respective NRL-GP and the
limited partnership interests in any such limited partnership may be owned by
IHC Realty Partnership, L.P.); (ii) that enters into a lease or leases permitted
by Section 8.02(i); and (iii) that incurs no Indebtedness (except any such
leases to the extent constituting Indebtedness); PROVIDED that (x) if a
partnership, the sole general partner (the "NRL-GP") shall be a corporation that
is a direct Wholly-Owned Subsidiary of the Borrower that has the sole management
of such partnership and neither Holdings nor any of its Subsidiaries (other than
such NRL-GP) shall have any liability for the obligations of such partnership or
such general partner (other than customary indemnities as set forth in Section
8.04(g)) and (y) upon the termination of all such leases entered into by an NRL
Subsidiary, such corporation, limited liability company or partnership shall
cease to be an NRL Subsidiary.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to the Administrative Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Original Credit Agreement" shall have the meaning provided in
the first WHEREAS clause.
"Original Effective Date" shall mean the Effective Date as
defined in the Original Credit Agreement.
"Participant" shall have the meaning provided in Section
2.04(a).
"Payment Office" shall mean the office of the Administrative
Agent at 1301 Avenue of the Americas, New York, New York, Attention: Mischa
Zabotin, or such other office as the Administrative Agent may designate to the
Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisitions" shall mean and include (i)
expenditures (including the purchase of adjacent land) to expand then existing
hotel facilities located in the United States or Canada to the extent owned by
the Borrower or any Subsidiary Guarantor on the Initial Borrowing Date or
acquired pursuant to a Permitted Acquisition, in an aggregate amount not to
exceed $10,000,000 for all expenditures pursuant to this clause (i); (ii)
advances or credit extensions to, or other investments in, any Person owing a
hotel property located in the United States or Canada made in connection with
the Borrower or any
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Subsidiary Guarantor obtaining a management contact for such hotel property, in
an aggregate amount not to exceed $30,000,000 for all advances, credit
extensions and investments pursuant to this clause (ii), with advances,
extensions and investments in NRL Subsidiaries in an aggregate amount of up to
$5,000,000 to be included as a Permitted Acquisition pursuant to this clause
(ii); and (iii) acquisitions (whether by purchase, lease or otherwise, and
including expenditures for start-up activities and operations and renovations)
of hotel properties (or interests in such properties) located in the United
States or Canada and/or interests in (or the making of advances or credit
extensions to or investments in) partnerships or limited liability companies
owning hotel properties located in the United States or Canada, PROVIDED that
(x) the only Indebtedness that may be incurred by Holdings, the Borrower and its
Subsidiaries to effect a Permitted Acquisition shall be Acquisition Loans and
Non-Recourse Debt, and (y) the aggregate amount that may be expended for all
Permitted Acquisitions in respect of hotel properties and facilities located in
Canada will not exceed $25,000,000 and provided that, in any event, the New
Partnership Acquisition shall constitute a Permitted Acquisition.
"Permitted Encumbrances" shall mean, with respect to a Real
Property constituting part of the Collateral, (i) the liens, encumbrances and
other matters disclosed in the Mortgage Policy relating to the Mortgage on such
Real Property or "insured over" or "insured around" to the satisfaction of the
Collateral Agent in such Mortgage Policy, (ii) such other title and survey
exceptions as the Collateral Agent may approve in writing in its reasonable
discretion, and (iii) the Permitted Liens, if any, described in Section 8.03(h)
affecting such Real Property.
"Permitted Liens" shall mean Liens described in Section 8.03.
"Permitted Subordinated Debt" shall mean subordinated debt of
the Borrower in an aggregate principal amount not to exceed $150 million, having
no stated payment of principal due earlier than the first anniversary of the RF
Maturity Date (or, if later, of the last maturity date for any Loans outstanding
after giving effect to the issuance of such Subordinated Debt) and otherwise
issued on terms satisfactory to the Required Banks, provided that Permitted
Subordinated Debt shall not be issued at any time in excess of that amount which
could have been issued on the last day of the fiscal quarter then last ended
without violating Section 8.10(b) on such date, with Modified Total Indebtedness
determined on such date without any subtraction for Non-Recourse Debt.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, limited liability company, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an
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obligation to contribute of) Holdings or a Subsidiary of Holdings or an ERISA
Affiliate, and each such plan for the five year period immediately following the
latest date on which Holdings, or a Subsidiary of Holdings or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan.
"Pledge Agreement" shall mean a Pledge Agreement executed by
each Credit Party substantially in the form of Exhibit F hereto as the same may
be amended, modified or supplemented from time to time.
"Pledged Securities" shall mean all the Pledged Securities as
defined in the Pledge Agreement.
"Prohibited Transaction" shall mean a transaction with respect
to a Plan that is prohibited under Section 4975 of the Code or Section 406 of
ERISA and not exempt under Section 4975 of the Code or Section 408 of ERISA.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C. Section 6901 ET SEQ.
"Real Property" of any Person shall mean all of the right,
title and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Reference Rate" shall mean the rate which the Administrative
Agent establishes from time to time as its reference rate for short term
commercial loans in U.S. dollars, the Reference Rate to change when and as such
reference rate changes. The Reference Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
The Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Reference Rate.
"Registration Statement" shall mean the registration statement
on form S-1, registration number 1 5507 filed by Holdings with the SEC on
November 5, 1996, together with the Amendments thereto.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
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"Relevant Determination Date" shall mean, at any time, (x) the
last day of the then most recently ended fiscal quarter or year of Holdings with
respect to which an officer's certificate has been, or is required to be,
delivered to the Banks pursuant to Section 7.01(d)(i) and (y) at any time the
Margin Reduction Discount is greater than zero, the last date subsequent to the
date specified in clause (x) on which any Permitted Acquisition was consummated
(in whole or in part) that was effected (in whole or in part) by the incurrence
of Indebtedness by the Borrower or any Subsidiary.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan other than those events as to which the
30-day notice period is waived under subsection .13, .14, .16, .18, .19 or .20
of PBGC Regulation Section 2615.
"Required Banks" shall mean Non-Defaulting Banks whose
outstanding Term Loans and Revolving Commitments (or, if after the Total
Revolving Commitment has been terminated, RF Percentages) aggregate more than
50% of the sum of (i) the total outstanding Term Loans of Non-Defaulting Banks
and (ii) the total Revolving Commitments of Non-Defaulting Banks (or, if after
the Total Revolving Commitment has been terminated, the aggregate RF Percentages
of Non-Defaulting Banks).
"Reserve" shall mean for any period any cash reserve
reasonably taken by the Borrower in good faith and in accordance with GAAP (to
the extent applicable thereto) or pursuant to the requirements of any credit
agreement binding on the Borrower and/or any Subsidiary in respect of cash
payments to be made in future periods relating to Consolidated Capital
Expenditures (other than any such Reserve relating to Consolidated Capital
Expenditures not permitted to be made in such period as a result of Section
8.06(a)).
"Restatement Effective Date" shall have the meaning provided
in Section 5.01.
"Revolving Commitment" shall mean, with respect to each Bank,
the amount set forth opposite such Bank's name in Annex I hereto directly below
the column entitled "Revolving Commitment," as the same may be reduced from time
to time pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to
time as a result of assignments to or from such Bank pursuant to Section 12.04.
"Revolving Facility" shall mean the Facility evidenced by the
Total Revolving Commitment.
"Revolving Loan" shall have the meaning provided in Section
1.01(d).
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"Revolving Note" shall have the meaning provided in Section
1.05(a).
"RF Maturity Date" shall mean June 25, 2003.
"RF Percentage" shall mean, at any time for each Bank with a
Revolving Commitment, the percentage obtained by dividing such Bank's Revolving
Commitment by the Total Revolving Commitment, PROVIDED that if the Total
Revolving Commitment has been terminated, the RF Percentage of each Bank shall
be determined by dividing such Bank's Revolving Commitment immediately prior to
such termination by the Total Revolving Commitment immediately prior to such
termination.
"S&P" shall mean Standard & Poor's Corporation and its
successors.
"Scheduled Repayment" shall have the meaning provided in
Section 4.02(A)(c)(i).
"Scheduled RF Reduction" shall have the meaning provided in
Section 3.03(b).
"SEC" shall mean the United States Securities and Exchange
Commission.
"SEC Regulation D" shall mean Regulation D as promulgated
u00nder the Securities Act of 1933, as amended, as the same may be in effect
from time to time.
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b)(ii).
"Security Agreement" shall mean a Security Agreement executed
by each Credit Party substantially in the form of Exhibit G hereto as the same
may be amended, modified or supplemented from time to time.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Documents" shall mean the Pledge Agreement, the
Security Agreement, the Miami Sub Escrow, the Miami Sub Mortgage Assignment
(once recorded), each Mortgage, each other Additional Security Document and each
security document entered into pursuant to Section 8.02(c).
"SPC" shall mean Crossroads/Memphis Financing Corporation, a Wholly-
Owned Subsidiary.
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"SPC Voting Interests" shall mean the special non-ownership
voting rights (relating, INTER ALIA, to voluntary bankruptcy filings) in respect
of New Lessee that are owned by SPC on the Restatement Effective Date.
"Specified Asset Sale" shall mean and include a sale by the
Borrower or any of its Subsidiaries of any assets owned by such Person on May 1,
1997.
"Specified Subsidiary" shall mean and include at any time each
NRD Borrower and each NRL Subsidiary existing at such time.
"Stated Amount" of each Letter of Credit shall mean the
maximum available to be drawn thereunder (regardless of whether any conditions
for drawing could then be met).
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean Capital Corp and each
Wholly-Owned Subsidiary that is party to the Subsidiary Guaranty.
"Subsidiary Guaranty" shall mean a Guaranty substantially in
the form of Exhibit E hereto as the same may be amended, modified or
supplemented.
"Taxes" shall have the meaning provided in Section 4.04.
"Term A Commitment" shall mean, with respect to each Bank, the
amount, if any, set forth opposite such Bank's name in Annex I hereto directly
below the column entitled "Term A Commitment."
"Term A Facility" shall mean the Facility evidenced by the
Total Term A Commitment.
"Term A Loan" shall have the meaning provided in Section
1.01(a).
"Term A Note" shall have the meaning provided in Section
1.05(a).
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"Term B Commitment" shall mean, with respect to each Bank, the
amount, if any, set forth opposite such Bank's name in Annex I hereto directly
below the column entitled "Term B Commitment."
"Term B Facility" shall mean the Facility evidenced by the
Total Term B Commitment.
"Term B Loan" shall have the meaning provided in Section
1.01(b).
"Term B Note" shall have the meaning provided in Section
1.05(a)
"Term C Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I hereto directly below the
column entitled "Term C Commitment."
"Term C Facility" shall mean the Facility evidenced by the
Total Term C Commitment.
"Term C Loan" shall have the meaning provided in Section
1.01(c).
"Term C Note" shall have the meaning provided in Section
1.05(a).
"Term Facility" shall mean and include the Term A Facility,
the Term B Facility and the Term C Facility.
"Term Loan" shall mean and include the Term A Loans, the Term
B Loans and the Term C Loans.
"Term Note" shall mean and include the Term A Notes, the Term
B Notes and the Term C Notes.
"Test Period" shall mean at any time the period (taken as one
accounting period) of four consecutive fiscal quarters then last ended, provided
that the computation of any amount (E.G. EBITDA) for a Test Period that includes
less than four full fiscal quarters commencing on or after the Initial Borrowing
Date shall include such amount for the Borrower, Member and their respective
Subsidiaries on a combined basis for the portion of such Test Period occurring
prior to the Initial Borrowing Date (determined on a basis consistent with the
Borrower's and Member's financial statements and the definitions contained
herein).
"TF Maturity Date" shall mean June 25, 2003.
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"Total Commitment" shall mean the sum of the Total Term A
Commitment, the Total Term B Commitment, the Total Term C Commitment and the
Total Revolving Commitment.
"Total Debt Service" shall mean, for any period, the sum,
without duplication, of the amounts for such period of (i) Total Interest
Expense of Holdings and (ii) all scheduled principal payments on Total
Indebtedness (including all Scheduled Repayments).
"Total Indebtedness" shall mean all Indebtedness for borrowed
money of or guaranteed by the Borrower and/or any of its Subsidiaries all as
determined on a consolidated basis.
"Total Interest Expense" shall mean, for any Person for any
period, total interest expense (including that attributable to Capital Leases in
accordance with GAAP) of such Person and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of such Person and its
Subsidiaries including, without limitation, all commissions, discounts and other
fees and charges owed with respect to letters of credit and net costs under
Interest Rate Agreements, but excluding, however, any amortization of deferred
financing costs, all as determined in accordance with GAAP.
"Total Lease Expense" shall mean, for any period, total lease
expense (excluding payments made under Capital Leases) of Holdings and its
Subsidiaries on a consolidated basis, all as determined in accordance with GAAP.
"Total Revolving Commitment" shall mean the sum of the
Revolving Commitments of each of the Banks.
"Total Term A Commitment" shall mean the sum of the Term A
Commitments of each of the Banks.
"Total Term B Commitment" shall mean the sum of the Term B
Commitments of each of the Banks.
"Total Term C Commitment" shall mean the sum of the Term C
Commitments of each of the Banks.
"Two Thirds Banks" shall mean Non-Defaulting Banks whose
outstanding Term Loans and Revolving Commitments (or, if after the Total
Revolving Commitment has been terminated, RF Percentages) constitute at least 66
2/3% of the sum of (i) the total outstanding Term Loans of Non-Defaulting Banks
and (ii) the total Revolving Commitments of Non-Defaulting Banks (or, if after
the Total Revolving Commitment has been terminated, the aggregate RF Percentages
of Non-Defaulting Banks).
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"Type" shall mean any type of Loan determined with respect to
the interest option applicable thereto, I.E., a Base Rate Loan or Eurodollar
Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan year exceeds the
fair market value of the assets allocable thereto, each determined in accordance
with Statement of Financial Accounting Standards No. 87, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan.
"Unpaid Drawing" shall have the meaning provided in Section
2.03(a).
"Unutilized Revolving Commitment" for any Bank at any time
shall mean the excess of (i) such Bank's Revolving Commitment at such time over
(ii) the sum of the principal amount of Revolving Loans made by such Bank and
outstanding at such time and (y) such Bank's RF Percentage of Letter of Credit
Outstandings at such time.
"Unutilized Total Revolving Commitment" shall mean, at any
time, the excess of (i) the Total Revolving Commitment at such time over (ii)
the sum of (x) the aggregate principal amount of all Revolving Loans then
outstanding plus (y) the aggregate Letter of Credit Outstandings at such time.
"Wholly-Owned Subsidiary" shall mean each Subsidiary of the
Borrower all of whose capital stock, equity interests and partnership interests
are owned directly or indirectly by the Borrower, its officers, stockholders and
affiliates but excluding any Subsidiary primarily engaged in the business of
issuing insurance and/or insurance policies.
"Working Capital Loans" shall mean all Revolving Loans that
are not Acquisition Loans.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
SECTION 11. THE ADMINISTRATIVE AGENT.
11.01 APPOINTMENT. Each Bank hereby irrevocably designates and
appoints Credit Lyonnais as Administrative Agent (such term to include for the
purposes of this Section 11 Credit Lyonnais acting as Collateral Agent) to act
as specified herein and in the other Credit Documents, and each such Bank hereby
irrevocably authorizes Credit Lyonnais as the Administrative Agent for such
Bank, to take such action on its behalf under the pro-
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visions of this Agreement and the other Credit Documents and to exercise such
powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Credit Documents, together
with such other powers as are reasonably incidental thereto. The Administrative
Agent agrees to act as such upon the express conditions contained in this
Section 11. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein or in the other Credit
Documents, nor any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
The provisions of this Section 11 are solely for the benefit of the
Administrative Agent, and the Banks, and no Credit Party shall have any rights
as a third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement, the Administrative Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation or relationship of agency or trust with or for any Credit
Party.
11.02 DELEGATION OF DUTIES. The Administrative Agent may
execute any of its duties under this Agreement or any other Credit Document by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by Section 11.03.
11.03 EXCULPATORY PROVISIONS. Neither the Administrative Agent
nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by Holdings or any
Subsidiary or any of their respective officers contained in this Agreement, any
other Credit Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Credit Document or for any
failure of Holdings or any Subsidiary or any of their respective officers to
perform its obligations hereunder or thereunder. The Administrative Agent shall
not be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of Holdings
or any Subsidiary. The Administrative Agent shall not be responsible to any Bank
for the effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any Credit Document or for any representations,
warranties, recitals or statements made herein or therein or made in any written
or oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or there-
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with furnished or made by the Administrative Agent to the Banks or by or on
behalf of Holdings to the Administrative Agent or any Bank or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
11.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, facsimile transmission, telex or teletype message,
statement, order or other document or conversation believed by it, in good
faith, to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to Holdings), independent accountants
and other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such advice
or concurrence of the Required Banks as it deems appropriate or it shall first
be indemnified to its satisfaction by the Banks against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Banks, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Banks.
11.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Bank or the Borrower or any other Credit Party referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the Banks.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Banks, PROVIDED
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Banks.
11.06 NON-RELIANCE. Each Bank expressly acknowledges that
neither the Administrative Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates have made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Borrower or any Subsidiary, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Bank. Each Bank represents to the Administrative Agent that
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it has, independently and without reliance upon the Administrative Agent, or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of Holdings and its Subsidiaries and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Bank also
represents that it will, independently and without reliance upon the
Administrative Agent, or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of Holdings and its Subsidiaries. The
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
assets, property, financial and other conditions, prospects or creditworthiness
of Holdings or any Subsidiary which may come into the possession of the
Administrative Agent or any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates.
11.07 INDEMNIFICATION. The Banks agree to indemnify the
Administrative Agent in its capacity as such ratably according to their
respective Loans and unutilized Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, reasonable expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment of
the Obligations) be imposed on, incurred by or asserted against the
Administrative Agent in its capacity as such in any way relating to or arising
out of this Agreement or any other Credit Document, or any documents
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted to be taken by the Administrative Agent under or in
connection with any of the foregoing, but only to the extent that any of the
foregoing is not paid by Holdings or any of its Subsidiaries, PROVIDED that no
Bank shall be liable to the Administrative Agent for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting
solely from the Administrative Agent's gross negligence or willful misconduct.
If any indemnity furnished to the Administrative Agent for any purpose shall, in
the opinion of the Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section 11.07 shall survive the payment of all
Obligations.
11.08 THE ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with Holdings and its Subsidiaries
as though not acting as Administrative Agent hereunder. With respect to the
Loans made by it and all Obligations
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owing to it, the Administrative Agent shall have the same rights and powers
under this Agreement as any Bank and may exercise the same as though it were not
the Administrative Agent, and the terms "Bank" and "Banks" shall include the
Administrative Agent in its individual capacity.
11.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may resign as the Administrative Agent upon 20 days' notice to the Banks and
Holdings. The Required Banks shall appoint from among the Banks a successor
Administrative Agent for the Banks subject to prior approval by Holdings so long
as an Event of Default has not occurred and is continuing (such approval not to
be unreasonably withheld), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall include such successor agent effective upon its
appointment, and the resigning Administrative Agent's rights, powers and duties
as the Administrative Agent shall be terminated, without any other or further
act or deed on the part of such former Administrative Agent or any of the
parties to this Agreement. After the retiring Administrative Agent's resignation
hereunder as the Administrative Agent, the provisions of this Section 11 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
SECTION 12. MISCELLANEOUS.
12.01 PAYMENT OF EXPENSES, ETC. The Borrower agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees and disbursements of White & Case) and of the Administrative
Agent and each of the Banks in connection with the enforcement of the Credit
Documents and the documents and instruments referred to therein (including,
without limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent and for each of the Banks); (ii) in the event (x) that any
of the Mortgages are foreclosed in whole or in part or that any of the Mortgages
are put into the hands of an attorney for collection, suit, action or
foreclosure, (y) of the foreclosure of any mortgage prior to or subsequent to
any of the Mortgages in which proceeding the Collateral Agent is made a party,
or (z) of the bankruptcy, insolvency, rehabilitation or other similar proceeding
in respect of the Borrower or any of its Subsidiaries, pay all costs of
collection and defense, including reasonable attorneys' fees in connection
therewith and in connection with any appellate proceeding or post-judgment
action involved therein, which shall be due and payable together with all
required service or use taxes; (iii) pay and hold each of the Banks harmless
from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and save each of the Banks harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the
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extent attributable to such Bank) to pay such taxes; and (iv) indemnify each
Bank, its officers, directors, employees, trustees, representatives and agents
(collectively, the "Indemnitees") from and hold each of them harmless against
any and all losses, liabilities, obligations (including removal or remedial
actions), claims, damages or expenses (including reasonable attorneys' and
consultants' fees and disbursements) incurred by any of them as a result of, or
arising out of, or in any way related to, or by reason of (a) any interest in
any Real Property (other than as permitted hereunder and/or under the other
Credit Documents) is claimed by any other Person, (b) any investigation,
litigation or other proceeding (whether or not any Bank is a party thereto)
related to the entering into and/or performance of any Credit Document or the
use of the proceeds of any Loans hereunder or under the Original Credit
Agreement or the consummation of any transactions contemplated in any Credit
Document, or (c) the actual or alleged presence of Hazardous Materials in the
air, surface water or groundwater or on the surface or subsurface of any Real
Property owned, leased or at any time operated by the Borrower or any of its
Subsidiaries, the release, generation, storage, transportation, handling or
disposal of Hazardous Materials at any location, whether or not owned or
operated by the Borrower or any of its Subsidiaries, the non-compliance by the
Borrower or any of its Subsidiaries of any Real Property with foreign, federal,
state and local laws, regulations, ordinances or Environmental Laws (including
applicable permits thereunder) applicable to any Real Property, or any
Environmental Claim relating to the Borrower or any of its Subsidiaries or any
Real Property owned, leased or at any time operated by the Borrower or any of
its Subsidiaries, including, in each case, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding (but excluding any such losses,
liabilities, claims, damages or expenses to the extent incurred by reason of the
gross negligence or willful misconduct of the Person to be indemnified or of any
other Indemnitee who is such Person or an affiliate of such Person). To the
extent that the undertaking to indemnify, pay or hold harmless any Person set
forth in the preceding sentence may be unenforceable because it is violative of
any law or public policy, the Borrower shall make the maximum contribution to
the payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
12.02 RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default, each
Bank is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Borrower or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by such Bank (including, without
limitation, by branches and agencies of such Bank wherever located) to or for
the credit or the account of the Borrower against and on account of the
Obligations and liabilities of the Borrower to such Bank under this Agreement or
under any of the other Credit Documents, including, without limitation, all
interests in Obligations the Borrower purchased by such Bank pursuant to
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Section 12.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Bank shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
12.03 NOTICES. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile transmission or cable communication)
and mailed, telegraphed, telexed, transmitted, cabled or delivered, if to the
Borrower, at the address specified opposite its signature below; if to any Bank,
at its address specified for such Bank on Annex II hereto; or, at such other
address as shall be designated by any party in a written notice to the other
parties hereto. All such notices and communications shall be mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, and
shall be effective when received.
12.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, PROVIDED that no Credit Party may
assign or transfer any of its rights or obligations hereunder without the prior
written consent of all the Banks. Each Bank may at any time grant participations
in any of its rights hereunder or under any of the Notes to another financial
institution, PROVIDED that in the case of any such participation, (i) the
participant shall not have any rights under this Agreement or any of the other
Credit Documents, including rights of consent, approval or waiver (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto), (ii) such Bank's obligations under this Agreement
(including, without limitation, its Commitment hereunder) shall remain
unchanged, (iii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iv) such Bank shall remain the
holder of any Note for all purposes of this Agreement and (v) the Borrower, the
Administrative Agent, and the other Banks shall continue to deal solely and
directly with the selling Bank in connection with such Bank's rights and
obligations under this Agreement, and all amounts payable by the Borrower
hereunder shall be determined as if such Bank had not sold such participation,
except that the participant shall be entitled to the benefits of Sections 1.10,
1.11 and 4.04 of this Agreement to the extent that such Bank would be entitled
to such benefits if the participation had not been entered into or sold, and,
PROVIDED FURTHER, that no Bank shall grant or sell any participation under which
the participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (x) extend the final scheduled maturity of the Term Loans or
Revolving Loans in which such participant is participating (it being understood
that any waiver of the making of, or the application of any amortization payment
or other prepayment or the method of any application of any prepayment to the
amortization of the Loans shall not constitute an extension of the final
maturity date thereof), or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a
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waiver of the applicability of any post-default increase in interest rates), or
reduce the principal amount thereof, or increase such participant's
participating interest in any Commitment over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default or of any
mandatory prepayment or a mandatory reduction in the Total Commitment, or a
mandatory prepayment, shall not constitute a change in the terms of any
Commitment), (y) release all or substantially all of the Collateral (in each
case except as expressly provided in the Credit Documents) or (z) consent to the
assignment or transfer by Holdings and/or the Borrower of any of its rights and
obligations under this Agreement.
(b) Notwithstanding the foregoing, (x) any Bank may assign all
or a portion of its Loans and/or Commitments, which does not have to be pro rata
among the Facilities, and its rights and obligations hereunder to another Bank
that is not a Defaulting Bank or to an Affiliate of such assignor Bank, and (y)
any Bank may assign all, or if less than all, a portion equal to at least
$5,000,000 in the aggregate for the assigning Bank or assigning Banks, of its
Loans and/ or Commitments and its rights and obligations hereunder, which
assignment does not have to be PRO RATA between the Facilities, to one or more
Eligible Transferees, each of which assignees shall become a party to this
Agreement as a Bank by execution of an Assignment Agreement, PROVIDED that (i)
at such time Annex I shall be deemed modified to reflect the Commitments (and/or
outstanding Term Loans, as the case may be) of such new Bank and of the existing
Banks, (ii) upon surrender of the old Notes, new Notes will be issued, at the
Borrower's expense, to such new Bank and to the assigning Bank, such new Notes
to be in conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments (and/or
outstanding Term Loans, as the case may be), (iii) in the case of clause (y)
only, the consent of the Administrative Agent shall be required in connection
with any such assignment (such consent not to be unreasonably withheld) and (iv)
the Administrative Agent shall receive at the time of each such assignment, from
the assigning or assignee Bank, the payment of a non-refundable assignment fee
of $3,000 and, PROVIDED FURTHER, that such transfer or assignment will not be
effective until recorded by the Administrative Agent on the Bank Register
pursuant to Section 12.15. To the extent of any assignment pursuant to this
Section 12.04(b) the assigning Bank shall be relieved of its obligations
hereunder with respect to its assigned Commitments. At the time of each
assignment pursuant to this Section 12.04(b) to a Person which is not already a
Bank hereunder and which is not a United States Person (as such term is defined
in Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Bank shall provide to the Borrower and the Administrative
Agent the appropriate Internal Revenue Service Forms (and, if applicable a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent
that an assignment of all or any portion of a Bank's Commitments and related
outstanding Obligations pursuant to this Section 12.04(b) would, at the time of
such assignment, result in increased costs under Section 1.10 from those being
charged by the respective assigning Bank prior to such assignment, then the
Borrower shall not be obligated to pay such
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increased costs (although the Borrower shall be obligated to any other increased
costs of the type described above resulting from changes after the date of the
respective assignment). Nothing in this clause (b) shall prevent or prohibit any
Bank from pledging its Notes or Loans to a Federal Reserve Bank in support of
borrowings made by such Bank from such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section
12.04, no transfer or assignment of the interests or obligations of any Bank
hereunder or any grant of participation therein shall be permitted if such
transfer, assignment or grant would require the Borrower to file a registration
statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any
State.
(d) Each Bank initially party to this Agreement hereby
represents, and each Person that became a Bank pursuant to an assignment
permitted by this Section 12.04 will, upon its becoming party to this Agreement,
represent that it is a commercial lender, other financial institution or other
"accredited" investor (as defined in SEC Regulation D) which makes or acquires
loans in the ordinary course of its business and that it will make or acquire
Loans for its own account in the ordinary course of such business, PROVIDED that
subject to the preceding clauses (a) and (b), the disposition of any promissory
notes or other evidences of or interests in Indebtedness held by such Bank shall
at all times be within its exclusive control.
(e) The Administrative Agent shall maintain at its Notice
Office a copy of each Assignment Agreement delivered to and accepted by it.
12.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of the Administrative Agent or any Bank in exercising any right, power
or privilege hereunder or under any other Credit Document and no course of
dealing between the Borrower and the Administrative Agent or any Bank shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Bank would otherwise have. No notice to or demand on
the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Administrative Agent or the Banks to any other or further action
in any circumstances without notice or demand.
12.06 PAYMENTS PRO RATA. (a) The Administrative Agent agrees
that promptly after its receipt of each payment from or on behalf of the
Borrower in respect of any Obligations, it shall distribute such payment to the
Banks (other than any Bank that has
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expressly waived its right to receive its PRO RATA share thereof) PRO RATA based
upon their respective shares, if any, of the Obligations with respect to which
such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such Obligation
then owed and due to all of the Banks immediately prior to such receipt, then
such Bank receiving such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the Obligations to such Banks in
such amount as shall result in a proportional participation by all of the Banks
in such amount, PROVIDED that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
12.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements
to be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by Holdings to the Banks); PROVIDED that except as otherwise specifically
provided herein, all computations determining compliance with Sections 4.02 and
8, including definitions used therein, shall utilize accounting principles and
policies in effect at the time of the preparation of, and in conformity with
those used to prepare, the December 31, 1995 financial statements delivered to
the Banks pursuant to Section 6.08(b), but shall be prepared on a consolidated
basis instead of a combined basis and shall not give effect to purchase
accounting adjustments required or permitted by APB 16 (including non-cash
write-ups and non-cash charges relating to inventory and fixed assets, in each
case arising in connection with the Transaction referred to in the Original
Credit Agreement) and APB 17 (including non-cash charges relating to intangibles
and goodwill arising in connection with such Transaction).
(b) All computations of interest on Loans and Fees hereunder
shall be made on the actual number of days elapsed over a year of 360 days.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK, EXCEPT THAT
THE PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS
CREATED PURSUANT TO THE MORTGAGES SHALL BE GOVERNED BY AND CONSTRUED ACCORDING
TO THE LAW OF THE STATE IN WHICH
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THE APPLICABLE REAL PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE
FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW
YORK SHALL GOVERN THE VALIDITY AND ENFORCEABILITY OF ALL CREDIT DOCUMENTS,
INCLUDING ALL MORTGAGES, AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR
THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, THE BORROWER HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK GOVERNS THIS AGREEMENT OR ANY OF
THE OTHER CREDIT DOCUMENTS, EXCEPT TO THE EXTENT AFORESAID WITH RESPECT TO THE
LIENS CREATED BY THE MORTGAGES. Any legal action or proceeding with respect to
this Agreement or any other Credit Document may be brought in the courts of the
State of New York or of the United States for the Southern District of New York,
and, by execution and delivery of this Agreement, the Borrower hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Holdings and the
Borrower hereby irrevocably designate, appoint and empower Corporation Service
Company, with offices on the date hereof at 375 Hudson Street, New York, New
York 10014, as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents which may be served in
any such action or proceeding. If for any reason such designee, appointee and
agent shall cease to be available to act as such, Holdings and the Borrower
agrees to designate a new designee, appointee and agent in New York City on the
terms and for the purposes of this provision satisfactory to the agent under
this Agreement. Holdings and the Borrower hereby further irrevocably consents to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to Holdings or the Borrower, as the case may be, at its
address for notices pursuant to Section 12.03, such service to become effective
30 days after such mailing. Nothing herein shall affect the right of the
Administrative Agent, any Bank to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against Holdings and
the Borrower in any other jurisdiction.
(b) Holdings and the Borrower hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Credit Document brought in the courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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12.09 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
12.10 HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
12.11 AMENDMENT OR WAIVER. Neither this Agreement nor any
terms hereof or thereof may be changed, waived, discharged or terminated unless
such change, waiver, discharge or termination is in writing signed by the
Borrower and the Required Banks (or the Two Thirds Banks if such change or
waiver (x) is to Section 4.02(A)(c)(i), (ii) and/or (iii), (y) would actually
increase (as opposed to waiving reductions of) any Facility or add any new
facility or (z) would increase the aggregate principal amount of Indebtedness
permitted to be incurred pursuant to Section 8.04 by an amount greater than 15%
of the aggregate principal amount of all Indebtedness permitted under Section
8.04 as of the Restatement Effective Date), PROVIDED that no such change,
waiver, discharge or termination shall, without the consent of each Bank (other
than a Defaulting Bank) affected thereby, (i) extend the final maturity date
applicable to a Facility (it being understood that any waiver of the making of,
or application of any prepayment of or the method of application of any
amortization payment or other prepayment to, the amortization of, the Loans
shall not constitute an extension of such final maturity thereof), reduce the
rate or extend the time of payment of interest (other than as a result of
waiving the applicability of any post-default increase in interest rates) or
Fees thereon, or reduce the principal amount thereof, or increase the Commitment
of any Bank over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of any mandatory prepayment or a
mandatory reduction in the Total Commitment shall not constitute a change in the
terms of any Commitment of any Bank), (ii) release all or substantially all of
the Collateral (in each case except as expressly provided in the Credit
Documents), (iii) amend, modify or waive any provision of this Section 12.11, or
Section 11.07, 12.01, 12.04, 12.06 or 12.07(b), (iv) reduce the percentage
specified in, or otherwise modify, the definition of Required Banks or Two
Thirds Banks or (v) consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement. No provision of Section 2 or
11 may be amended without the consent of (x) any Letter of Credit Issuer
adversely affected thereby or (y) the Administrative Agent, respectively.
12.12 SURVIVAL. All indemnities set forth herein including,
without limitation, in Section 1.10, 1.11, 2.05, 4.04, 11.07 or 12.01 shall
survive the execution and delivery of this Agreement and the making and
repayment of the Loans.
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12.13 DOMICILE OF LOANS. Each Bank may transfer and carry its
Loans at, to or for the account of any branch office, subsidiary or affiliate of
such Bank, PROVIDED that the Borrower shall not be responsible for costs arising
under Section 1.10 or 4.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.12) to the extent not otherwise applicable to
such Bank prior to such transfer.
12.14 CONFIDENTIALITY. Subject to Section 12.04, the Banks
shall hold all non-public information obtained pursuant to the requirements of
this Agreement which has been identified as such by the Borrower in accordance
with its customary procedure for handling confidential information of this
nature and in accordance with safe and sound banking practices and in any event
may make disclosure reasonably required by any BONA FIDE transferee or
participant in connection with the contemplated transfer of any Loans or
Commitments or participation therein (PROVIDED that each such prospective
transferee and/or participant shall execute an agreement for the benefit of the
Borrower with such prospective transferor Bank containing provisions
substantially identical to those contained in this Section 12.14), to its
auditors, attorneys or as required or requested by any governmental or
self-regulatory organization or representative thereof or pursuant to legal
process, PROVIDED that, unless specifically prohibited by applicable law or
court order, each Bank shall notify the Borrower of any request by any
governmental agency or self-regulatory organization or representative of either
thereof (other than any such request in connection with an examination of the
financial condition of such Bank by such governmental agency or, to the extent
such organization agrees to be bound by the terms of this Section 12.14,
self-regulatory organization) for disclosure of any such non-public information
prior to disclosure of such information, and, PROVIDED FURTHER, that in no event
shall any Bank be obligated or required to return any materials furnished by
Holdings or any Subsidiary. Holdings and the Borrower hereby agrees that the
failure of a Bank to comply with the provisions of this Section 12.14 shall not
relieve Holdings or the Borrower of any of the obligations to such Bank under
this Agreement and the other Credit Documents.
12.15 BANK REGISTER. The Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this Section
12.15, to maintain a register (the "Bank Register") on which it will record the
names and addresses of the Banks and the Commitments of, and principal amount of
the Loans owing to each, Bank from time to time. The entries in the Bank
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent and the Banks shall treat each
Person whose name is recorded in the Bank Register as a Bank hereunder for all
purposes of this Agreement. Failure to make any such recordation, or any error
in such recordation, shall not affect the Borrower's obligations in respect of
such Loans. With respect to any Bank, the transfer of the Commitments of such
Bank and the rights to the principal of, and interest on, any Loan made pursuant
to such Commitments shall not be effective until such transfer is recorded on
the Bank Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior
-100-
<PAGE> 107
to such recordation all amounts owing to the transferor with respect to such
Commitments and Loans shall remain owing to the transferor. The registration of
assignment or transfer of all or part of any Commitments and Loans shall be
recorded by the Administrative Agent on the Bank Register only upon the
acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 12.04(b). The Bank
Register shall be available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice. The Borrower
agrees to indemnify the Administrative Agent from and against any and all
losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 12.15.
12.16 INTEREST. (a) It is the intention of the parties hereto
that each Bank shall conform strictly to usury laws applicable to it.
Accordingly, the parties hereto stipulate and agree that none of the terms and
provisions contained in the Notes, this Agreement, or any of the other Credit
Documents shall ever be construed to create a contract to pay to any Bank for
the use, forbearance, or retention of money at a rate in excess of the Highest
Lawful Rate applicable to such Bank, and that for purposes hereof, "interest"
shall include Banks only to the extent same is included for purposes of
determining the Highest Lawful Rate for such Bank, the aggregate of all charges
or other consideration which constitute interest under applicable law and are
contracted for, taken, reserved, charged, or received under any of this
Agreement, the Notes, or the other Credit Documents or otherwise in connection
with the transactions contemplated by this Agreement. Further, if the
transactions contemplated hereby would be usurious as to any Bank under laws
applicable to it, then, in that event, notwithstanding anything to the contrary
in the Notes, this Agreement or in any other Credit Document or agreement
entered into in connection with or as security for the Notes, it is agreed as
follows: the aggregate of all consideration which constitutes interest for
determining the Highest Lawful Rate for each such Bank that is contracted for,
taken, reserved, charged, or received by such Bank under the Notes, this
Agreement, or under any of the other aforesaid Credit Documents or agreements or
otherwise in connection with the Notes shall under no circumstances exceed the
maximum amount allowed by the law applicable to such Bank, and any excess shall
be credited by such Bank on the principal amount of the Indebtedness of the
Borrower owed to such Bank and thereafter all other obligations owing such Bank
not included in determining "interest" for purposes of the Highest Lawful Rate
applicable to such Bank (or, if the principal amount of such Indebtedness and
all other such amounts shall have been paid in full, to the extent such interest
has been received by a Bank it shall be refunded by such Bank to the Borrower).
The provisions of this Section 12.16(a) shall control over all other provisions
of this Agreement, the Notes, and the other Credit Documents which may be in
apparent conflict herewith. The parties further stipulate and agree that,
without limitation on the foregoing, all calculations of the rate or amount of
interest contracted for, taken, reserved, charged or received under any of this
Agreement, the Notes, and the other Credit Documents which are made for the
purpose of determining whether such rate or amount
-101-
<PAGE> 108
exceed the Highest Lawful Rate shall be made, to the extent permitted by
applicable law, by amortizing, prorating, allocating, and spreading during the
period of the full stated term of the Indebtedness, and if longer and if
permitted by applicable law, until payment in full, all interest at any time so
contracted for, taken, reserved, charged, or received.
(b) If at any time the effective rate of interest which would
otherwise apply to any Indebtedness hereunder or evidenced by any Bank's Notes
would exceed the Highest Lawful Rate applicable to such Bank (taking into
account the interest rate applicable to such Indebtedness pursuant to the other
provisions of this Agreement, plus all additional charges and consideration
which have been contracted for, taken, reserved, charged, or received under this
Agreement, such Bank's Notes and the other Credit Documents, or any of them (the
"Additional Charges") to, but only to, the extent any of the same constitute
interest with respect to such Indebtedness for purposes of determining the
Highest Lawful Rate), the effective interest rate to apply to such Indebtedness
made by such Bank shall be limited to the Highest Lawful Rate, but any
subsequent reductions in the interest rate applicable to such Indebtedness owed
to such Bank shall not reduce the effective interest rate to apply to such
Indebtedness owed to such Bank below the Highest Lawful Rate applicable to such
Bank until the total amount of interest accrued on such Indebtedness equals the
amount of interest which would have accrued if the interest rate from time to
time applicable to such Indebtedness owed to such Bank had at all times been in
effect with respect to such Indebtedness pursuant to the other provisions of
this Agreement and the other Credit Documents and if the Banks had collected all
Additional Charges called for under this Agreement, the Notes, and the other
Credit Documents. If at maturity or final payment of such Bank's Obligations the
total amount of interest paid to any Bank hereunder and under the other Credit
Documents (including amounts designated as "interest" plus any Additional
Charges, and taking into account the limitations of the first sentence of this
Section 12.16(b)) is less than the total amount of such "interest" which would
have been paid if all amounts were paid as required by this Agreement (without
giving effect to this Section 12.16) and the other Credit Documents (the amount
of the difference described above, the "Deficiency"), then the Borrower agrees,
to the fullest extent permitted by the laws applicable to such Bank, to pay to
such Bank an amount equal to the lesser of (i) the difference between (1) the
amount of such "interest" which would have accrued on such Bank's Notes if the
Highest Lawful Rate had at all times been in effect, and (2) the amount of
interest actually paid on such Bank's Notes (including amounts designated as
"interest" plus any Additional Charges) and (ii) the amount of the Deficiency.
SECTION 13. GUARANTY.
13.01 THE GUARANTY. In order to induce the Banks to enter into
this Agreement and to extend credit hereunder and in recognition of the direct
benefits to be received by Holdings from the proceeds of the Loans, Holdings
hereby agrees with the Banks as follows: Holdings hereby, unconditionally and
irrevocably, guarantees as primary
-102-
<PAGE> 109
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, by acceleration or otherwise, of any and all indebtedness of the
Borrower to the Banks. If any or all of the indebtedness of the Borrower to the
Banks becomes due and payable hereunder, Holdings unconditionally promises to
pay such indebtedness to the Banks, or order, on demand, together with any and
all expenses which may be incurred by the Agent or the Banks in collecting any
of the indebtedness. The word "indebtedness" is used in this Section 13 in its
most comprehensive sense and includes any and all advances, debts, obligations
(including obligations which, but for any automatic stay under Section 362(a) of
the Bankruptcy Code, would become due) and liabilities of the Borrower arising
in connection with this Agreement or any other Credit Document or under any
Interest Rate Agreement with an Interest Rate Creditor (as such term is defined
in the Security Documents), in each case, heretofore, now, or hereafter made,
incurred or created, whether voluntarily or involuntarily, absolute or
contingent, liquidated or unliquidated, determined or undetermined, whether or
not such indebtedness is from time to time reduced, or extinguished and
thereafter increased or incurred, whether the Borrower may be liable
individually or jointly with others, whether or not recovery upon such
indebtedness may be or hereafter become barred by any statute of limitations,
and whether or not such indebtedness may be or hereafter become otherwise
unenforceable.
13.02 BANKRUPTCY. Additionally, Holdings unconditionally and
irrevocably guarantees the payment of any and all indebtedness of the Borrower
to the Banks whether or not due or payable by the Borrower upon the occurrence
in respect of the Borrower of any of the events specified in Section 9.05, and
unconditionally promises to pay such indebtedness to the Banks, or order, on
demand, in lawful money of the United States.
13.03 NATURE OF LIABILITY. The liability of Holdings hereunder
is exclusive and independent of any security for or other guaranty of the
indebtedness of the Borrower whether executed by Holdings, any other guarantor
or by any other party, and the liability of Holdings hereunder shall not be
affected or impaired by (a) any direction as to application of payment by the
Borrower or by any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
indebtedness of the Borrower, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to the
Administrative Agent or the Banks on the indebtedness which the Administrative
Agent or such Banks repay the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and Holdings waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding. This Guaranty is a
guaranty of payment and not a guaranty of collectibility.
13.04 INDEPENDENT OBLIGATION. The obligations of Holdings
hereunder are independent of the obligations of any other guarantor or the
Borrower, and a separate action
-103-
<PAGE> 110
or actions may be brought and prosecuted against Holdings whether or not action
is brought against any other guarantor or the Borrower and whether or not any
other guarantor or the Borrower be joined in any such action or actions.
Holdings waives, to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by the Borrower or other circumstance which operates to
toll any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to Holdings.
13.05 AUTHORIZATION. Holdings authorizes the Administrative
Agent and the Banks without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing its
liability hereunder, from time to time to (a) renew, compromise, extend,
increase, accelerate or otherwise change the time for payment of, or otherwise
change the terms of the indebtedness or any part thereof in accordance with this
Agreement, including any increase or decrease of the rate of interest thereon,
(b) take and hold security from any guarantor or any other party for the payment
of this guaranty or the indebtedness and exchange, enforce, waive and release
any such security, (c) apply such security and direct the order or manner of
sale thereof as the Administrative Agent and the Banks in their discretion may
determine and (d) release or substitute any one or more endorsers, guarantors,
the Borrower or other obligors.
13.06 RELIANCE. It is not necessary for the Administrative
Agent or the Banks to inquire into the capacity or powers of the Borrower or its
Subsidiaries or the officers, directors, partners or agents acting or purporting
to act on its behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
13.07 SUBORDINATION. Any indebtedness of the Borrower now or
hereafter held by Holdings is hereby subordinated to the indebtedness of the
Borrower to the Administrative Agent and the Banks; and such indebtedness of the
Borrower to Holdings, if the Administrative Agent, after an Event of Default has
occurred, so requests, shall be collected, enforced and received by Holdings as
trustee for the Banks and be paid over to the Banks on account of the
indebtedness of the Borrower to the Banks, but without affecting or impairing in
any manner the liability of Holdings under the other provisions of this
Guaranty. Prior to the transfer by Holdings of any note or negotiable instrument
evidencing any indebtedness of the Borrower to Holdings, Holdings shall mark
such note or negotiable instrument with a legend that the same is subject to
this subordination.
13.08 WAIVER. (a) Holdings waives any right (except as shall
be required by applicable statute and cannot be waived) to require the
Administrative Agent or the Banks to (a) proceed against the Borrower, any other
guarantor or any other party, (b) proceed against or exhaust any security held
from the Borrower, any other guarantor or any other party or (c) pursue any
other remedy in the Administrative Agent's or the Banks'
-104-
<PAGE> 111
power whatsoever. Holdings waives any defense based on or arising out of any
defense of the Borrower, any other guarantor or any other party other than
payment in full of the indebtedness, including, without limitation, any defense
based on or arising out of the disability of the Borrower, any other guarantor
or any other party, or the unenforceability of the indebtedness or any part
thereof from any cause, or the cessation from any cause of the liability of the
Borrower other than payment in full of the indebtedness. The Administrative
Agent and the Banks may, at their election, foreclose on any security held by
the Administrative Agent or the Banks by one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable
(to the extent such sale is permitted by applicable law), or exercise any other
right or remedy the Administrative Agent and the Banks may have against the
Borrower or any other party, or any security, without affecting or impairing in
any way the liability of Holdings hereunder except to the extent the
indebtedness has been paid. Holdings waives any defense arising out of any such
election by the Administrative Agent and the Banks, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of Holdings against the Borrower or any other party or any
security.
(b) Holdings waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notice of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. Holdings assumes all responsibility for being and keeping itself
informed of the Borrower's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the indebtedness and the
nature, scope and extent of the risks which Holdings assumes and incurs
hereunder, and agrees that the Administrative Agent and the Banks shall have no
duty to advise Holdings of information known to them regarding such
circumstances or risks.
13.09 LIMITATION ON ENFORCEMENT. The Banks agree that this
Guaranty may be enforced only by the action of the Administrative Agent or the
Collateral Agent, in each case acting upon the instructions of the Required
Banks and that no Bank shall have any right individually to seek to enforce or
to enforce this Guaranty or to realize upon the security to be granted by any
Security Document, it being understood and agreed that such rights and remedies
may be exercised by the Administrative Agent or the Collateral Agent for the
benefit of the Banks upon the terms of this Agreement and any Security Document.
The Banks further agree that the Guaranty may not be enforced against any
director, officer, employee or stockholder of Holdings.
* * *
-105-
<PAGE> 112
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
ADDRESS: INTERSTATE HOTELS COMPANY
Foster Plaza 10
680 Andersen Drive
Pittsburgh, Pennsylvania 15220 By /s/ TIMOTHY Q. HUDAK
Attn: Marvin I. Droz ---------------------------------
Tel: (412) 937-3304 Title: Assistant Secretary
Fax: (412) 937-3265
Foster Plaza 10 INTERSTATE HOTELS CORPORATION
680 Andersen Drive
Pittsburgh, Pennsylvania 15220
Attn: Marvin I. Droz
Tel: (412) 937-3304 By /s/ TIMOTHY Q. HUDAK
Fax: (412) 937-3265 ---------------------------------
Title: Vice President and
Assistant Secretary
CREDIT LYONNAIS NEW YORK BRANCH,
Individually and as Administrative Agent
By /s/ MISCHA ZABOTIN
---------------------------------
Title:
CREDIT LYONNAIS ACTIVE LOAN PORTFOLIO
By /s/ ATTILA KOC
---------------------------------
Title: Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By /s/ THOMAS LI
---------------------------------
Title: Managing Director
PNC BANK, N.A.
By /s/ JAY C. BAKER
---------------------------------
Title: Vice President
THE BANK OF NEW YORK
By /s/ DAVID FOWLER
---------------------------------
Title: Vice President
MITSUI LEASING (U.S.A.) INC.
By /s/ JERRY PARISI
---------------------------------
Title: Senior Vice President
GIROCREDIT BANK AG DER SPARKASSEN,
GRAND CAYMAN ISLAND BRANCH
By /s/ JOHN REDDING
---------------------------------
Title:
SOCIETE GENERALE
By /s/ SEDARE CORADIN
---------------------------------
Title: Vice President
VIA BANQUE
By /s/ CHRISTEL PROT
---------------------------------
Title: Senior Director
By /s/ P. Arnoult
---------------------------------
Title: Director
KEYPORT LIFE INSURANCE COMPANY
By /s/ DANIEL T.H. YIN
---------------------------------
Title: Assistant Vice President
UNITED MUTUAL OF OMAHA
By /s/ EDWIN H. GARRISON, JR.
---------------------------------
Title: First Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ CHERYL ROOT
---------------------------------
Title: Director, CIBC
Wood Gundy Securities
Corp., AS AGENT
ARAB BANK PLC
By /s/ SIGNATURE ILLEGIBLE
---------------------------------
Title: EVP & Regional Manager
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
(A UNIT OF THE CHASE MANHATTAN BANK)
By /s/ JAMES P. FERGUSON
---------------------------------
Title: Managing Director
BANK OF SCOTLAND
By /s/ ANNIA CHIN TAT
---------------------------------
Title: Vice President
TRANSAMERICA BUSINESS CREDIT CORPORATION
By /s/ SIGNATURE ILLEGIBLE
---------------------------------
Title: Senior Vice President
SOUTHERN PACIFIC THRIFT & LOAN ASSOCIATION
By /s/ CHRIS KELLEHER
---------------------------------
Title: Vice President
BANKBOSTON, N.A.
By /s/ SIGNATURE ILLEGIBLE
---------------------------------
Title: Director
BANK OF HAWAII
By /s/ JOSEPH T. DONALSON
---------------------------------
Title: Vice President
BANQUE NATIONALE DE PARIS
By /s/ SIGNATURE ILLEGIBLE
---------------------------------
Title: Senior Vice President
By /s/ MARGUERITE L. LEBON
---------------------------------
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By /s/ MELVIN J. MANDELBAUM
---------------------------------
Title: Unit Head
ORIX USA CORPORATION
By /s/ SIGNATURE ILLEGIBLE
---------------------------------
Title: Vice President
CHANG HWA COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
By /s/ WAN-TU YEH
---------------------------------
Title: VP & General Manager
PRIME INCOME TRUST
By /s/ RAFAEL SCOLARI
---------------------------------
Title: VP Portfolio Manager
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By /s/ MARK M. HARDEN
---------------------------------
Title: Vice President
ALLSTATE INSURANCE COMPANY
By /s/ CHRISTOPHER GEORGEN
---------------------------------
Title:
By /s/ JUDITH GREFFIN
---------------------------------
Title:
WELLS FARGO BANK N.A.
By /s/ SIGNATURE ILLEGIBLE
---------------------------------
Title: Vice President
-106-
<PAGE> 113
BANK LEUMI TRUST COMPNAY OF
NEW YORK
By /s/ STEVE NAVARRO
---------------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ REBECCA McCLOSKEY
---------------------------------
Title: Vice President
KZH HOLDING CORPORATION II
By /s/ SIGNATURE ILLEGIBLE
---------------------------------
Title: Authorized Agent
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, LP
ING CAPITAL ADVISORS, INC AS
INVESTMENT ADVISOR
By /s/ KATHLEEN LENARCIC
---------------------------------
Title: Vice President &
Portfolio Manager
BY OAK HILL SECURITIES GENPAR,
L.P., GENERAL PARTNER
BY OAK HILL SECURITIES MGP,
INC., ITS GENERAL PARTNER
By /s/ SCOTT D. KRASE
---------------------------------
Title: Vice President
BANKERS TRUST COMPANY
By /s/ LAURA BURWICK
---------------------------------
Title:
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENE
By /s/ MARCUS EDWARD
---------------------------------
Title: Vice President
By /s/ BRIAN O' LEARY
---------------------------------
Title: Vice President
JACKSON NATIONAL LIFE
INSURANCE COMPANY
BY: PPM AMERICA, INC, AS
ATTORNEY-IN-FACT, ON BEHALF
OF JACKSON NATIONAL LIFE
INSURANCE
By /s/ SIGNATURE ILLEGIBLE
---------------------------------
Title: Managing Director
THE SANWA BANK, LTD
By /s/ KEVIN KAI
---------------------------------
Title: AVP
BANK LEUMI TRUST COMPANY
OF NEW YORK
By /s/ STEVE NAVARRO
---------------------------------
Title: First Vice President
By /s/ Signature Illegible
---------------------------------
Title: Vice President
PLIGRIM AMERICA PRIME RATE TRUST
By /s/ DANIEL A. NORMAN
---------------------------------
Title: Senior Vice President
MEDICAL LIABILITY
By /s/ K. WAYNE KAHLE
---------------------------------
Title: Vice President
-107-
<PAGE> 114
ANNEX I
COMMITMENTS
<TABLE>
<CAPTION>
TERM TERM TERM
NAME OF BANK LOAN A LOAN B LOAN C REVOLVER
- ------------ ------ ------ ------ --------
<S> <C> <C> <C> <C>
Credit Lyonnais $ 45,961,039.03 $ 26,493,333.32 $ $ 15,706,213.32
New York Branch
Keyport Life 3,818,181.82 - 3,181,818.18 -
Insurance
Company
Medical Liability 3,818,181.82 - 3,181,818.18 -
Insurance
Company
United Mutual of 5,000,000.00 - - -
Omaha
PNC Bank, N.A. 22,690,677.76 5,795,416.67 - 21,031,073.67
The Bank of New 22,690,677.76 7,451,250.00 - 19,364,407.00
York
Societe Generale 16,207,627.38 4,967,500.00 - 13,474,576.00
CIBC, Inc. 16,207,627.38 - 8,000,000.00 18,474,576.00
Canadian Imperial 7,631,118.88 - 12,272,727.27 -
Bank of
Commerce
Transamerica - - - 25,000,000.00
Business Credit
First Union - - - 25,000,000.00
National Bank of
North Carolina
The Bank of Nova - 5,795,416.67 - 19,166,666.67
Scotia
Bank of Hawaii 4,903,846.15 5,795,416.67 - 14,166,666.67
</TABLE>
<PAGE> 115
ANNEX I
Page 2
<TABLE>
<CAPTION>
TERM TERM TERM
NAME OF BANK LOAN A LOAN B LOAN C REVOLVER
- ------------ ------ ------ ------ --------
<S> <C> <C> <C> <C>
Bank of Scotland 3,923,076.92 4,967,500.00 - 15,500,000.00
Massachusetts 7,846,153.85 - 15,000,000.00 -
Mutual Life
Insurance Co.
Octagon Credit - 9,935,000.00 9,000,000.00 2,000,000.00
Investors
Mitsui Leasing 9,724,576.04 - - 10,084,746.00
(U.S.A) Inc.
Banque Nationale - 4,139,583.33 - 15,833,333.33
de Paris
Wells Fargo Bank - - - 17,500,000.00
N.A.
First National - - - 17,500,000.00
Bank of Chicago
Arab Bank PLC 9,724,576.04 - - 7,584,746.00
Trust Company of 1,078,846.15 - 3,500,000.00 -
the West
Oak Hill - - 15,000,000.00 -
Securities Fund,
Ltd.
Chang Hwa - 3,311,666.67 - 11,666,666.67
Commercial Bank,
Ltd.
Southern Pacific - 4,139,583.33 - 8,333,333.33
Thrift & Loan
Association
CIC - - - 12,500,000.00
Bankers Trust - - - 12,500,000.00
Company
</TABLE>
<PAGE> 116
ANNEX I
Page 3
<TABLE>
<CAPTION>
TERM TERM TERM
NAME OF BANK LOAN A LOAN B LOAN C REVOLVER
- ------------ ------ ------ ------ --------
<S> <C> <C> <C> <C>
Via Banque 6,483,050.36 - - 3,389,831.00
BankBoston N.A. - 3,311,666.67 - 6,666,666.67
Sanwa Bank, Ltd. - - - 10,000,000.00
Credit Lyonnais - 3,311,666.67 - 6,666,666.67
Active Loan
Portfolio
Orix USA Corp - 9,935,000.00 - -
Girocredit Bank 6,483,050.36 - - 3,389,831.00
Eaton Vance 4,903,846.15 - 5,000,000.00 -
Citicorp Real - - - 10,000,000.00
Estate, Inc.
ING Capital - - 4,500,000.00 -
Advisors
KZH Holdings - - 4,500,000.00 -
Corp. II
Bank Leumi - - - 7,500,000.00
PPM - - 5,000,000.00 -
Dean - - 5,000,000.00 -
Witter/Prime
Income Trust
Allstate Insurance - - 2,500,000.00 -
Company
Allstate Life - - 2,500,000.00 -
Insurance
Company
TOTAL $191,250,000.00 $ 99,350,000.00 $135,000,000.00 $350,000,000.00
</TABLE>
<PAGE> 117
ANNEX II
BANK ADDRESSES
<TABLE>
<CAPTION>
BANK ADDRESS
<S> <C>
CREDIT LYONNAIS 1301 Avenue of the Americas
NEW YORK BRANCH New York, NY 10019
Telephone No: 212-261-7872
Facsimile No: 212-261-7890
Attention: Mischa Zabotin
MASSACHUSETTS MUTUAL 1295 State Street
LIFE INSURANCE COMPANY Springfield, MA 01111-0001
Telephone No: 413-744-6125
Facsimile No: 413-744-6127
Attention: Steven Katz
PNC BANK, N.A. 1 PNC Plaza
249 5th Avenue
Pittsburgh, PA 15222-2707
Telephone No: 412-762-3293
Facsimile No: 412-768-5754
Attention: Jay Baker
THE BANK OF NEW YORK One Wall Street
21st Floor
New York, NY 10286
Telephone No: 212-635-8113
Facsimile No: 212-809-9526
Attention: David Fowler
MITSUI LEASING (U.S.A.) INC. 200 Park Avenue
32nd Floor
New York, NY 10166
Telephone No: 212-883-3061
Facsimile No: 212-490-1684
Attention: Jerry Parisi
</TABLE>
<PAGE> 118
ANNEX II
Page 2
<TABLE>
<S> <C>
GIROCREDIT BANK AG DER 65 East 55th Street
SPARKASSEN, 29th Floor
GRAND CAYMAN ISLAND New York, NY 10022
BRANCH Telephone No: 212-909-0624
Facsimile No: 212-644-0644
Attention: John Redding
SOCIETE GENERALE 1221 Avenue of the Americas
11th Floor
New York, NY 10020
Telephone No: 212-278-6878
Facsimile No: 212-278-7430
Attention: Sedare Coradin
VIA BANQUE 10 Rue Volney BP 27
75002 Paris
CEDEX 02
Telephone No: 33-1-49-26-26-26
Facsimile No: 33-1-49-26-29-99
Attention: Christel Prot
STRATA/CERES/AERIES/ 666 5th Avenue
CAPTIVA New York, NY 10103
ORRICK, HERRINGTON & Telephone No: 212-506-5184
SUTCLIFFE Facsimile No: 212-506-3540
Attention: Patricia Seddon
KEYPORT LIFE INSURANCE CO. 125 High Street
Boston, MA 02110-2712
Attention: Daniel T.H. Yin
MEDICAL LIABILITY MUTUAL 2 Park Avenue
INSURANCE COMPANY New York, NY 10016
Attention: K. Wayne Kahle
UNITED MUTUAL OF OMAHA Investment Securities Division
Mutual of Omaha Plaza
Omaha, NE 68175
Attention: Gary Garrison
</TABLE>
<PAGE> 119
ANNEX II
Page 3
AMARA-2 FINANCE LTD 425 Park Avenue
KAYE, SCHOLER, PIERMAN, New York, NY 10022-3598
HAYS & HANDLER, L.L.P. Telephone No: 212-836-8216
Facsimile No: 212-836-7157/6157
Attention: Gary Bernstein
CANADIAN IMPERIAL BANK 425 Lexington Avenue
OF COMMERCE 8th Floor
New York, NY 10017
Telephone No: 212-85
Attention: Cheryl Root
ARAB BANK PLC 520 Madison Avenue
2nd Floor
New York, NY 10022
Telephone No: 212-715-9702
Facsimile No: 212-593-4632
Attention: Khanh Voung
OCTAGON CREDIT INVESTORS 380 Madison Avenue
New York, NY 10017
Telephone No: 212-622-3070
Facsimile No: 212-622-3797
Attention: James Ferguson
BANK OF SCOTLAND 565 Fifth Avenue
New York, NY 10017
Telephone No: 212-450-0830
Attention: John Kelly
TRANSAMERICA BUSINESS 555 Theodore Fremd Avenue
CREDIT Rye, NY 10580
Telephone No: 914-925-7200
Facsimile No: 914-921-0110
Attention: Steve Goetschius
<PAGE> 120
ANNEX II
Page 4
SOUTHERN PACIFIC THRIFT 12300 Wilshire Blvd., Suite 200
& LOAN PORTFOLIO Los Angeles, CA 90025
Telephone No:
Facsimile No: 310-207-4087
Attention: Chris Kelleher
BANK OF BOSTON 115 Perimeter Center Place NE
Suite 500
Atlanta, GA 30346
Telephone No: 770-390-6552
Attention: Daniel L. Silbert
BANK OF HAWAII 1850 North Central Avenue, Suite 400
Phoenix, AZ 85004
Telephone No: 602-257-2432
Facsimile No: 602-257-2235
Attention: Joseph Donalson
BANQUE NATIONALE DE PARIS Real Estate Department (2nd Floor)
499 Park Avenue
New York, NY 10022
Telephone No: 212-415-9876
Facsimile No: 212-415-9823
Attention: Marguerite L. Lebon
SCOTIABANK Real Estate Banking
THE BANK OF NOVA SCOTIA 1 Liberty Plaza, 25th Floor
New York, NY 10006
Telephone No: 212-225-5158
Facsimile No: 212-225-5166
Attention: Doug Davisdon
RIX USA CORPORATION 780 Third Avenue, 48th Floor
New York, NY 10017-7088
Telephone No: 212-418-8357
Facsimile No: 212-418-8308
Attention: Ms. Kiyomi Kosaka
<PAGE> 121
ANNEX II
Page 5
CHANG HWA COMMERCIAL One World Trade Center
BANK, LTD. Suite 3211
New York, NY 10048
Telephone No: 212-390-7040
Facsimile No: 212-390-0120
Attention: Teddy Mou
DEAN WITTER/PRIME INCOME C/O Dean Witter Intercapital Inc.
TRUST 72nd Floor
Two World Trade Center
New York, NY 10048
Telephone No: 212-392-9034
Facsimile No: 212-392-5345
Attention: Peter Gerwitz
FIRST UNION NATIONAL BANK 301 South College Street, DC-5
OF NORTH CAROLINA Charlotte, NC 28288-0745
Telephone No: 704-383-4747
Facsimile No: 704-374-2802
Attention: John Cannon
ALLSTATE INSURANCE c/o Allstate Life Insurance Company
COMPANY Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, IL 60062-7127
Telephone No: 847-402-4394
Facsimile No: 847-402-3092
Attention: Christopher Goergen
ALLSTATE LIFE INSURANCE Private Placements Department
COMPANY 3075 Sanders Road, STE G3A
Northbrook, IL 60062-7127
Telephone No: 847-402-4394
Facsimile No: 847-402-3092
Attention: Thomas Dugan
WELLS FARGO BANK 555 Montgomery Street, 17th Floor
San Francisco, CA 94111
Telephone No: 415-396-3728
Facsimile No: 415-788-9421
Attention: Mark Meyers
<PAGE> 122
ANNEX II
Page 6
BANK LEUMI TRUST OF NEW 579 Fifth Avenue, 3rd Floor
YORK New York, NY 10017
Telephone No: 212-407-4303
Facsimile No: 212-407-4317
Attention: Steve Navarro
THE FIRST NATIONAL BANK One First National Plaza, Suite 0315
OF CHICAGO Chicago, IL 60670-0315
Telephone No: 312-732-7227
Facsimile No: 312-732-1117
Attention: Charles Moffett
PROTECTIVE ASSET 1150 Two Galleria Tower
MANAGEMENT LLC 13455 Noel Road LB#45
Dallas, TX 75240
Telephone No: 972-233-4300
Facsimile No: 972-233-4343
Attention: Todd Travers
MERRILL LYNCH ASSET 800 Scudders Mill Road
MANAGEMENT Plainsboro, NJ 08536
Telephone No: 609-282-2000
Facsimile No: 609-282-2756
Attention: Anthony Clemente
PILGRIM AMERICA Two Renaissance Square
TIME RATE TRUST 40 North Central Avenue, Suite 1200
Phoenix, AZ 85002-4424
Telephone No: 602-417-8259
Facsimile No: 602-417-8300
Attention: Howard Tiffen
KZH HOLDINGS CORPORATION II 333 South Grand Avenue
Los Angeles, CA 90071
Telephone No: 213-346-3980
Facsimile No: 213-346-3995
Attention: Kathleen Lenarcic
<PAGE> 123
ANNEX II
Page 7
TRUST COMPANY OF THE WEST 200 Park Avenue, 22nd Floor
New York, NY 10166
Telephone No: 212-297-4137
Facsimile No: 212-297-4159
Attention: Justin Driscole
APPALOOSA MANAGEMENT 51 John F. Kennedy Parkway
Short Hills, NJ 07078
Telephone No: 201-376-5400
Facsimile No: 201-376-5415
Attention: James Bolin
OAK HILL SECURITIES FUND, L Park Avenue Tower
65 East 55th Street, 32nd Floor
New York, NY 10022
Telephone No: 212-326-1551
Facsimile No: 212-593-3596
Attention: Scott Krase
EATON VANCE 24 Federal Street
Boston, MA 02110
Telephone No: 617-654-8486
Facsimile No: 617-695-9594
Attention: Craig Russ
BANKERS TRUST COMPANY 130 Liberty Street, 25th Floor
New York, NY 10006
Telephone No: 212-250-2568
Facsimile No: 212-669-0743
Attention: Laura Burwick
UNION EUROPEENNE DE CIC 520 Madison Avenue
New York, NY 10022
Telephone No: 212-715-4413
Facsimile No: 212-715-4477
Attention: Shaun Mounier
<PAGE> 124
ANNEX II
Page 8
PPM AMERICA 225 West Wacker Street
Suite 1200
Chicago, IL 60606
Telephone No: 312-634-2561
Facsimile No: 312-634-0054
Attention: Guy Petrelli
THE SANWA BANK 55 East 52nd Street
New York, NY 10055
Telephone No: 212-339-6337
Facsimile No: 212-754-2360
Attention: Kevin Kai
CITIBANK 399 Park Avenue
9th Floor, Zone 8
New York, NY 10043
Telephone No: 212-559-8266
Facsimile No: 212-793-5300
Attention: Susan McManigal
<PAGE> 1
Exhibit 10.13(b)
Interstate Hotels Company
Foster Plaza Ten
680 Andersen Drive
Pittsburgh, Pennsylvania 15220
December 2, 1997
Mr. Milton Fine
c/o Interstate Hotels Company
Foster Plaza Ten
680 Andersen Drive
Pittsburgh, Pennsylvania 15220
Re: Indemnification Agreement
-------------------------
Dear Mr. Fine:
The Company believes that the best interests of the Company's shareholders
would be served by the Fine Shareholders (as defined below) entering into the
Shareholders Agreement described below, in order to induce the other parties to
such agreement to enter into the Agreement and Plan of Merger referenced
therein. In consideration thereof, the Company wishes to amend the
Indemnification Agreement ("Indemnification Agreement"), dated June 1996,
between the undersigned. The Indemnification Agreement is hereby amended by
adding the first sentence of this letter as Recital F, by deleting the
definition of the term "INDEMNIFIABLE EVENT" in Section 1(c) thereof in its
entirety and inserting in lieu thereof the following:
"INDEMNIFIABLE EVENT" means any actual or asserted event or
occurrence (i) related to the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director,
officer, partner (whether general, limited or other), trustee,
employee or agent of another corporation, partnership, joint
venture, trust or other entity, whether or not for profit
(including the heirs, executors, administrators or estate of such
person) or anything done or not done by Indemnitee in any such
capacity, or (ii) relating to, resulting from or arising out of
the execution or delivery of the Shareholders Agreement, dated
as of December 2, 1997 among Patriot American Hospitality, Inc.,
Patriot American Hospitality Operating Company and the
shareholders named therein ("Fine Shareholders") and/or the
consummation of any of the transactions contemplated thereby or
compliance with any of the provisions thereof.
and by inserting the following definition of "Indemnitee" at the end of
Section 1:
<PAGE> 2
"INDEMNITEE" means each of the Fine Shareholders and any
trustee or beneficiary of any of the Fine Shareholders.
INTERSTATE HOTELS COMPANY
By: /s/ W. THOMAS PARRINGTON, JR.
-----------------------------
W. Thomas Parrington, Jr.
President and Chief Executive Officer
Accepted and agreed to as of the date
first above written:
/s/ MILTON FINE
- -------------------------------------
Milton Fine
<PAGE> 1
Exhibit 21.1
INTERSTATE HOTELS COMPANY
LIST OF SUBSIDIARIES
Cambridge Hotel Associates
Casa Marina Realty Corporation
Casa Marina Realty Partnership, L.P.
CHR Consulting Company, L.L.C.
CHR Services Company, L.L.C.
Colony de Mexico, S.A. de C.V.
Colony Hotels and Resorts Company
Colony International Management Company, L.L.C.
Continental Design & Supplies Company, L.L.C.
Crossroads Development Company
Crossroads Future Company, L.L.C.
Crossroads Future Corporation
Crossroads Hospitality Company, L.L.C.
Crossroads Hospitality Tenant Company, L.L.C.
Crossroads/Memphis Company, L.L.C.
Crossroads/Memphis Partnership, L.P.
Crossroads/Memphis Financing Company, L.L.C.
Crossroads/Memphis Financing Corporation
DFW/H&R, Inc.
Don CeSar Resort Hotel, Ltd.
Equity Bluefield, Inc.
Family Suites Corporation
Family Suites Limited Partnership
Family Suites Management Corporation
Family Suites Management Partnership, L.P.
FS Development Corporation
Hilltop Equipment Leasing Company, L.P.
HMC/Interstate Manhattan Beach, L.P.
HMC/Interstate Ontario, L.P.
HMC/Interstate Waterford, L.P.
HMG Beverage, Inc.
Host/Interstate Partnership, L.P.
Huntington Hotel Partners, L.P.
IHC/Atlanta Corporation
IHC/Blacksburg Corporation
IHC/Blacksburg Partnership, L.P.
IHC/Brentwood Corporation
IHC/Brentwood Partnership, L.P.
IHC/Burlington Corporation
IHC Capital Corporation
IHC/CG Portfolio Corporation
IHC/Chaz Corporation
<PAGE> 2
IHC/Colorado Springs Corporation
IHC/Conshohocken Corporation
IHC/Denver Corporation
IHC/FS Development Corporation
IHC/Houston Corporation
IHC/Huntington Corporation
IHC/Interstone Corporation
IHC/Interstone Partnership, L.P.
IHC/Interstone Partnership II, L.P.
IHC/Jacksonville Corporation
IHC/Jamaica Corporation
IHC/Lisle Corporation
IHC/Maryville Hotel Corporation
IHC Member Corporation
IHC/Miami Beach Corporation
IHC Miami Mortgage Corporation
IHC/Moscow Corporation
IHC/Park West Corporation
IHC/Pittsburgh Partnership, L.P.
IHC/Reach Corporation
IHC/Roanoke Corporation
IHC/Roanoke Partnership, L.P.
IHC/Santa Maria Corporation
IHC Services Company, L.L.C.
IHC/Texas Corporation
IHC Title Agency Corporation
IHC/Westborough Corporation
IHC/Westborough Partnership, L.P.
IHC/Williamsburg Corporation
IHP Holdings Partnership, L.P.
IHP Investment Company, L.L.C.
IHP/Class B Partnership, L.P.
Intercarp Limited Partnership
Interstate Hotels Corporation
Interstate/Montour Associates, Ltd.
Interstone Partners I L.P.
Interstone Three Partners I L.P.
Interstone Three Partners II L.P.
Interstone Three Partners IV L.P.
Interstone Three Partners III L.P.
Interstone/Atlanta Partnership, L.P.
Interstone/Conshohocken Partnership, L.P.
Interstone/CGL Partners, L.P.
Interstone/Colorado Springs Partnership, L.P.
Interstone/Denver Partnership, L.P.
<PAGE> 3
Interstone/Huntington Partnership, L.P.
Interstone/Houston Partnership, L.P.
Interstone/Lisle Partnership, L.P.
Interstone/Williamsburg Partnership, L.P.
Maryville Centre CBM Joint Venture
Maryville Centre Hotel Joint Venture
Northridge Insurance Company
Oak Hill Catering Company, Inc.
Orange Hotel Development Limited Partnership
Park West Hotel Associates
PW Land Associates Limited Partnership
Santa Maria Joint Venture
Syracuse Associates Corporation
Syracuse Realty Associates, L.P.
The Key West Reach Limited Partnership
Water Street Hotel Ltd.
<PAGE> 1
Exhibit 23.1
Coopers & Lybrand Letterhead
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statements on Form S-8 pertaining to the Employee Stock Purchase Plan,
1996 Equity Incentive Plan, Stock Option Plan for Non-Employee
Directors and Management Bonus Plan of Interstate Hotels Company (File
Nos. 333-19307, 333-29457, 333-29461 and 333-29459, respectively) of
our report dated February 11, 1998, except for Note 21, as to which the
date is March 1, 1998, and except for Note 3, as to which the date is
March 30, 1998, on our audits of the consolidated financial statements
as of December 31, 1996 and 1997 and for each of the three years in the
period ended December 31, 1997, which report is included in this Annual
Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
600 Grant Street
Pittsburgh, Pennsylvania
March 30, 1998
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Milton Fine, W. Thomas Parrington, Jr., J. William Richardson,
Marvin I. Droz, and each of them, the true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, to sign on his behalf, as a director of Interstate Hotels
Company, a Pennsylvania corporation (the "Company"), an Annual Report on Form
10-K for the year ended December 31, 1997, and to sign any and all amendments to
such Form 10-K and file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or agents, or any of them, and their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ DAVID J. FINE
-----------------
David J. Fine
Dated: March 30, 1998
<PAGE> 2
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints W. Thomas Parrington, Jr., J. William Richardson, Marvin I. Droz,
and each of them, the true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, to sign on his behalf, as a director of Interstate Hotels Company, a
Pennsylvania corporation (the "Company"), an Annual Report on Form 10-K for the
year ended December 31, 1997, and to sign any and all amendments to such Form
10-K and file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or agents, or any of them, and their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ MILTON FINE
---------------
Milton Fine
Dated: March 30, 1998
<PAGE> 3
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Milton Fine, W. Thomas Parrington, Jr., J. William Richardson,
Marvin I. Droz, and each of them, the true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, to sign on his behalf, as a director of Interstate Hotels
Company, a Pennsylvania corporation (the "Company"), an Annual Report on Form
10-K for the year ended December 31, 1997, and to sign any and all amendments to
such Form 10-K and file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or agents, or any of them, and their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ R. MICHAEL MCCULLOUGH
-------------------------
R. Michael McCullough
Dated: March 30, 1998
<PAGE> 4
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Milton Fine, J. William Richardson, Marvin I. Droz, and each of
them, the true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, to
sign on his behalf, as a director of Interstate Hotels Company, a Pennsylvania
corporation (the "Company"), an Annual Report on Form 10-K for the year ended
December 31, 1997, and to sign any and all amendments to such Form 10-K and file
the same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or agents, or any of them, and their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ W. THOMAS PARRINGTON, JR.
-----------------------------
W. Thomas Parrington, Jr.
Dated: March 30, 1998
<PAGE> 5
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Milton Fine, W. Thomas Parrington, Jr., Marvin I. Droz, and each of
them, the true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, to
sign on his behalf, as a director of Interstate Hotels Company, a Pennsylvania
corporation (the "Company"), an Annual Report on Form 10-K for the year ended
December 31, 1997, and to sign any and all amendments to such Form 10-K and file
the same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or agents, or any of them, and their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ J. WILLIAM RICHARDSON
-------------------------
J. William Richardson
Dated: March 30, 1998
<PAGE> 6
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Milton Fine, W. Thomas Parrington, Jr., J. William Richardson,
Marvin I. Droz, and each of them, the true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, to sign on his behalf, as a director of Interstate Hotels
Company, a Pennsylvania corporation (the "Company"), an Annual Report on Form
10-K for the year ended December 31, 1997, and to sign any and all amendments to
such Form 10-K and file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or agents, or any of them, and their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ THOMAS J. SAYLAK
--------------------
Thomas J. Saylak
Dated: March 30, 1998
<PAGE> 7
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Milton Fine, W. Thomas Parrington, Jr., J. William Richardson,
Marvin I. Droz, and each of them, the true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, to sign on his behalf, as a director of Interstate Hotels
Company, a Pennsylvania corporation (the "Company"), an Annual Report on Form
10-K for the year ended December 31, 1997, and to sign any and all amendments to
such Form 10-K and file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or agents, or any of them, and their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
/s/ STEVEN J. SMITH
-------------------
Steven J. Smith
Dated: March 30, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AT DECEMBER 31, 1997 AND CONSOLIDATED STATEMENT OF
OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1997 AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 31,988
<SECURITIES> 0
<RECEIVABLES> 40,827
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 88,756
<PP&E> 1,252,575
<DEPRECIATION> (98,664)
<TOTAL-ASSETS> 1,373,463
<CURRENT-LIABILITIES> 131,697
<BONDS> 800,124
0
0
<COMMON> 354
<OTHER-SE> 456,021
<TOTAL-LIABILITY-AND-EQUITY> 1,373,463
<SALES> 0
<TOTAL-REVENUES> 661,712
<CGS> 0
<TOTAL-COSTS> 544,680
<OTHER-EXPENSES> 2,447
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 44,255
<INCOME-PRETAX> 70,330
<INCOME-TAX> 26,744
<INCOME-CONTINUING> 43,586
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 43,586
<EPS-PRIMARY> 1.23
<EPS-DILUTED> 1.22
</TABLE>
