EXHIBIT 99.2
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SECOND AMENDMENT AND RESTATEMENT
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SECOND AMENDMENT AND RESTATEMENT (this "Second Amendment and
Restatement"), dated as of January 16, 2002, among WYNDHAM INTERNATIONAL, INC.,
a Delaware corporation (the "Borrower"), the Lenders from time to time party to
the Increasing Rate Note Purchase and Loan Agreement referred to below (the
"Lenders"), X.X. XXXXXX SECURITIES INC. (f/k/a Chase Securities Inc.) ("XX
Xxxxxx"), as Lead Arranger and Book Manager, BEAR XXXXXXX CORPORATE LENDING
INC., as Co-Arranger and Syndication Agent and BANKERS TRUST COMPANY as
Syndication Agent (each a "Syndication Agent", together the "Syndication
Agents"), and JPMORGAN CHASE BANK (f/k/a The Chase Manhattan Bank), as
Administrative Agent (the "Administrative Agent"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings provided
such terms in the Increasing Rate Note Purchase and Loan Agreement referred to
below as amended hereby.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders, XX Xxxxxx, the Syndication Agents
and the Administrative Agent are parties to an Increasing Rate Note Purchase and
Loan Agreement, dated as of June 30, 1999 (as amended, modified or supplemented
to, but not including, the date hereof, the "Increasing Rate Note Purchase and
Loan Agreement");
WHEREAS, the parties hereto wish to amend the Increasing Rate Note
Purchase and Loan Agreement as herein provided; and
WHEREAS, subject to the terms and conditions of this Second Amendment
and Restatement, the parties hereto agree as follows:
I. Amendments
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1. The definitions of the following terms contained in Section 1.01
of the Increasing Rate Note Purchase and Loan Agreement are hereby amended in
their entirety as follows:
"Asset Disposition" means any sale, conveyance, transfer, assignment,
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lease or other disposition (including, without limitation, by merger or
consolidation, and excluding (x) Dispositions or transfers arising out of,
or in connection with, a Recovery Event, (y) Exchanges and (z) Designated
Excluded Properties Sales) by the Borrower, or any of its Subsidiaries or
Joint Ventures to any Person (other than to the Borrower or any of its
Subsidiaries or Joint Ventures) of any Equity Ownership Interest of any of
its Subsidiaries or Joint Ventures or any Hotel or any other properties and
assets, or group of related properties and assets of any kind whatsoever,
whether real, personal, or mixed, in each case other than (i) sales,
dispositions, leases, and transfers of inventory, obsolete personal
property and fixtures, furniture and equipment, time share units and
residential lots, terminations of franchise and management agreements,
licensing of intellectual property, sales of inventory and (ii) other
sales, dispositions, leases, and transfers of
assets other than Hotels and/or all or substantially all of the seller's
interest in a Subsidiary or Joint Venture which generate net proceeds
and/or other consideration the fair market value of which is less than
$5,000,000 in the aggregate in any fiscal year of the Borrower.
"Indebtedness" means as to any Person, without duplication, (i) all
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indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of any asset
(including Forward Purchase Obligations but excluding Contingent Purchase
Obligations) or services; (ii) the maximum amount available to be drawn
under all letters of credit issued for the account of such Person and all
unpaid drawings in respect of such letters of credit, (iii) all
Indebtedness of the types described in clause (i), (ii), (iv), (v), (vi),
(vii) or (viii) of this definition secured by any Lien on any asset owned
by such Person, whether or not such Indebtedness has been assumed by such
Person (it being understood and agreed that the amount of such Indebtedness
under this clause (iii) shall be deemed to be the lesser of the fair market
value (as determined in the reasonable judgment of the Borrower) of such
asset and the principal amount of such Indebtedness), (iv) Capital Lease
Obligations, (v) all obligations of such person to pay a specified purchase
price for goods or services, whether or not delivered or accepted, i.e.,
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take-or-pay and similar obligations, (vi) all Guarantee Obligations of such
Person, (vii) solely for purposes of Sections 6.03 and 7.04, all net
exposure of Derivative Obligations, including obligations under any
Interest Rate Protection Agreement, Other Hedging Agreements or under any
similar type of agreement or arrangement calculated in accordance with GAAP
and (viii) Net Rental Payments; provided, that Indebtedness shall not
include (a) trade payables incurred in the ordinary course of business, (b)
except to the extent covered by clause (viii) above, operating lease
obligations (including, without limitation, the lessee's obligations under
(i) the Existing Operating Leases and the Permitted Sale/Leaseback
Transactions and (ii) any other operating lease pursuant to which the
Borrower, or any of its Subsidiaries or Joint Ventures, as lessee, leases
all or any portion of a Hotel from the holder of an ownership or leasehold
interest in such Hotel, as lessor) and (c) short term notes evidencing
xxxxxxx money deposits until delivered to the payee.
"Joint Venture" means with respect to any Person, at any date, any
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other Person in whom such Person directly or indirectly holds an
Investment, and whose financial results would not be consolidated under
GAAP with the financial results of such Person on the consolidated
financial statements of such Person, if such statements were prepared as of
such date; provided that no Person shall be considered a Joint Venture
solely because such Person is characterized as a partnership for tax
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purposes.
"Lead Arranger and Book Manager" means X.X. Xxxxxx Securities Inc., as
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successor to Chase Securities Inc.
"Net Cash Proceeds" means (a) for any Asset Disposition or Exchange,
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the gross cash proceeds (including any cash received by way of deferred
payment pursuant to a promissory note, receivable or otherwise, but only as
and when received) received by Borrower or any of its Subsidiaries or Joint
Ventures from any Asset Disposition or Exchange, net of (i) reasonable
transaction costs (including, without limitation, any
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underwriting, brokerage or other customary selling commissions and
reasonable legal, advisory, professional and other fees and expenses,
including title and recording expenses, surveys, insurance premiums, Taxes
and similar costs associated therewith) and payments of unassumed
liabilities relating to the assets sold at the time of, or within 90 days
after, the date of such sale, (ii) the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness
pursuant to this Agreement, Indebtedness under the Senior Credit Facilities
and any Indebtedness constituting Permitted Secured Debt) which is secured
by any of the respective assets which were the subject of such Asset
Disposition or Exchange, including any premium, make-whole or breakage
amount related thereto, (iii) the estimated marginal increase in income
taxes which will be payable by the Borrower's consolidated group with
respect to the fiscal year in which the sale occurs or deferred payment is
received as a result of such sale, (iv) all contractually required
distributions and other payments made to other interest holders of any of
the Borrower's Subsidiaries in connection with such Asset Disposition or
Exchange, and (v) in each year, (I) the first $10,000,000 from Asset
Dispositions and Exchanges in such year which would have constituted Net
Cash Proceeds if Net Cash Proceeds were determined without this clause (v)
plus (II) the aggregate of the amount (if any) not deducted pursuant to
clause (v)(I) in each previous year (commencing 2002) because the Net Cash
Proceeds from all Asset Dispositions and Exchanges in such year (determined
without giving effect to this clause (v)) were less than $10,000,000;
provided, however, that (x) such gross proceeds shall not include any
portion of such gross cash proceeds which the Borrower determines in good
faith should be reserved for post-closing adjustments (including
indemnification payments, tax expenses and purchase price adjustments, to
the extent the Borrower delivers to the Lenders a certificate signed by a
Responsible Officer of such Borrower officer as to such determination), it
being understood and agreed that on the day that all such post-closing
adjustments have been determined (which shall not be later than one year
following the date of the respective Asset Disposition or Exchange
provided, however, such one year period shall be extended to the extent any
amount of such proceeds is subject to a good faith dispute or claim), the
amount (if any) by which the reserved amount in respect of such sale or
disposition exceeds the actual post-closing adjustments payable by the
Borrower or any of its Subsidiaries shall constitute Net Cash Proceeds on
such date received by the Borrower and/or any of its Subsidiaries from such
sale, lease, transfer or other disposition, (y) with respect to any Asset
Disposition or Exchange relating to the assets of a Joint Venture, such Net
Cash Proceeds shall only include the portion of such Net Cash Proceeds
received by the Borrower or any of its Subsidiaries and (z) with respect to
any Exchange, Net Cash Proceeds shall be deemed to not have been received
by the Borrower or any of its Subsidiaries while held by a Qualified
Intermediary; and (b) in connection with any incurrence or issuance of
Indebtedness, the cash proceeds received by the Borrower or any of its
Subsidiaries from such issuance or incurrence (with any proceeds of such
Indebtedness required to be deposited in a reserve, escrow or other similar
account not to be deemed received until released therefrom and paid to the
issuer of such Indebtedness), net of (i) if such Indebtedness is incurred
to refinance, renew or extend other Indebtedness permitted under Section
6.02 (other than Indebtedness pursuant to this Agreement, Indebtedness
under the Senior Credit Facilities and any Indebtedness constituting
Permitted Secured Debt), the amount necessary to
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repay such other Indebtedness, including, without limitation, accrued but
unpaid interest, any breakage costs, penalties, premium, and any other
reasonable fees and expenses incurred in connection therewith, (ii)
attorneys' fees, indemnification payments, filing and recording taxes,
investment banking fees, accountants' fees, underwriting discounts and
commissions, and (iii) other customary fees and expenses actually incurred
in connection therewith.
"Recovery Event" means the actual receipt by the Borrower, any of its
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Subsidiaries or any of their Joint Ventures of any Insurance/Condemnation
Proceeds.
"Security Documents" means the collective reference to the Guaranty
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and Collateral Agreement, the Mortgages and all other security documents
hereafter delivered to the Collateral Agent granting a Lien on any asset,
including Real Property Assets, of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.
2. The Increasing Rate Note Purchase and Loan Agreement is hereby
amended by deleting the last sentence of the definition of "Subsidiary".
3. Section 1.01 of the Increasing Rate Note Purchase and Loan
Agreement is further amended by inserting the following new definitions in the
appropriate alphabetical order:
"Additional Mortgaged Property" has the meaning provided in Section
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5.09(a).
"Additional Secured Debt" means Indebtedness of the Borrower, which
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may be guaranteed by the Subsidiary Guarantors, issued pursuant to a
registered offering or a Rule 144A offering, which Indebtedness is to be
secured pari passu under the Security Documents provided that (i) no
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maturities of such Indebtedness shall be prior to the Term Loan Maturity
Date (as defined in the Credit Agreement) and (ii) the terms and conditions
of such Indebtedness shall be reasonably satisfactory to the Credit
Agreement Administrative Agent, it being understood that Additional Secured
Debt is not Permitted Debt Refinancing.
"Affected Loans" has the meaning provided in Section 2.09(f).
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"Credit Agreement Administrative Agent" means the administrative agent
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under the Credit Agreement.
"Designated Excluded Properties Sale" means a sale or other
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disposition of an Excluded Property to the extent the Net Cash Proceeds
thereof are utilized for Specified Purposes, it being understood that, if
less than all of the Net Cash Proceeds of any such sale or disposition is
not, concurrently with the consummation thereof, utilized for Specified
Purposes, the Net Cash Proceeds not so utilized shall, at the election of
the Borrower, either be (x) treated as the proceeds of an Asset Disposition
(and applied as required by Section 2.09(e)) or (y) deposited in an escrow
account with, and otherwise reasonably satisfactory to, the Credit
Agreement Administrative Agent, with the amounts so deposited to be
released when needed to make expenditures for Specified Purposes, provided
that all amounts (if any) in such escrow account at a time when the
Obligations
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have become due and payable shall be released to the Collateral Agent to be
applied to Loans, Term Loans, Revolving Loans and Permitted Debt
Refinancing as if such amounts were proceeds of an Asset Disposition being
applied pursuant to Section 2.09(e).
"Designated Percentage" means 100% less the lower of (i) 25% and (ii)
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the maximum percentage that will result in the amount of Net Cash Proceeds
from an issuance of Indebtedness, an Asset Disposition and/or Exchange that
the Borrower may retain under Sections 2.09(b) and/or (d) (i.e. that is not
required to be applied to repay Indebtedness pursuant to Section 2.09(e))
not exceeding in the aggregate for all issuances of Indebtedness, Asset
Dispositions and Exchanges effected (x) in the twelve months following the
Second Amendment and Restatement Effective Date, $50 million or (y) in any
subsequent consecutive 12-month period, $35 million (but limited to $15
million during the period from the second anniversary of the Second
Amendment and Restatement Effective Date to the Maturity Date) plus the
amounts permitted by clause (x) and this clause (y) (as to any prior years)
and not theretofore utilized.
"Excluded Properties" means the Real Properties set forth on Schedule
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XV to this Agreement plus any additional Real Property received by the
Borrower or a Subsidiary as a result of an Exchange of an Excluded
Property.
"Existing Mortgage Debt" means any Indebtedness outstanding on the
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Second Amendment and Restatement Effective Date secured by a Lien on Real
Property other than the Obligations and Indebtedness under the Senior
Credit Facilities.
"Existing Mortgage Refinancing" means the refinancing of any Existing
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Mortgage Debt.
"Insurance/Condemnation Proceeds" means an amount equal to: (i) any
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cash payments or proceeds received by the Borrower or any of its
Subsidiaries or Joint Ventures (a) by reason of theft, physical destruction
or damage or any other similar event with respect to any properties or
assets of the Borrower or any of its Subsidiaries or Joint Ventures under
any policy of insurance required to be maintained under Section 5.05 (other
than liability or business interruption insurance) in respect of a covered
loss thereunder or (b) as a result of any non-temporary condemnation,
taking, seizing or similar event with respect to any properties or assets
of the Borrower or any of its Subsidiaries or Joint Ventures by any Person
pursuant to the power of eminent domain, condemnation or otherwise, or
pursuant to a sale of any such assets to a purchaser with such power under
threat of such a taking, minus (ii) (a) any actual and reasonable
documented costs incurred by the Borrower or any of its Subsidiaries or
Joint Ventures in connection with the adjustment or settlement of any
claims of the Borrower or such Subsidiary or Joint Venture in respect
thereof, (b) any bona fide direct costs incurred in connection with any
disposition of such assets as referred to in clause (i)(b) of this
definition, including income taxes reasonably estimated to be actually
payable by the Borrower's consolidated group as a result of any gain
recognized in connection therewith and (c) any payment of the outstanding
principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Obligations) that is secured by a Lien on
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the stock or assets in question and that is required to be repaid under the
terms thereof as a result of such sale of assets or as a result of a
covered loss.
"JPMorgan Chase" means JPMorgan Chase Bank, as successor to The Chase
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Manhattan Bank.
"Majority Lenders" means the holders of more than 50% in the aggregate
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of (x) the outstanding principal amount of Term Loans, (y) the outstanding
principal amount of the Loans (or under any Permitted Debt Refinancing that
refinances same) and (z) the Revolving Commitments (as defined in the
Credit Agreement)(or the commitments under any Permitted Debt Refinancing
that refinances the Revolving Loan Facility).
"Mortgage" means a mortgage, deed of trust, deed to secure debt or
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other customary applicable real property lien instrument (including, as
appropriate, a security agreement, assignment of rents and leases and
fixture filing) in a form reasonably acceptable to the Administrative
Agent, with any changes to such form as may be necessary or appropriate to
comply with the laws of applicable jurisdictions in which such Mortgage is
to be filed, as it may be amended, supplemented or otherwise modified from
time to time.
"Mortgaged Property" means (i) the Real Property Assets listed on
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Schedule XIV to this Agreement and (ii) each Additional Mortgaged Property.
"Net Cash Proceeds Notice" means a written notice executed by a
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Responsible Officer stating that (i) no Event of Default has occurred and
is continuing and (ii) the Borrower intends to use the Designated
Percentage or 100%, as the case may be, of the Net Cash Proceeds of an
Asset Disposition or an Exchange to repay outstanding Indebtedness in
accordance with the priorities set forth in Section 2.09(e), and providing
reasonable detail for computing such Net Cash Proceeds.
"Net Insurance/Condemnation Proceeds" means with respect to any event
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or series of events an amount equal to: (i) Insurance/Condemnation Proceeds
for such event less (ii) any investment or payment made within 365 days of
the date of such event (which period shall be extended by the number of
days such investment or payment is delayed due to force majeure) by the
Borrower or any of its Subsidiaries or Joint Ventures for the renewal,
improvement, reconstruction, repair, restoration or replacement of the
affected assets of Borrower or its Subsidiaries or Joint Ventures
(including reimbursement of the Borrower for expenditures previously made
therefor) within 365 days of the date of such casualty or condemnation
event (which period shall be extended by the number of days such investment
or payment is delayed due to force majeure) provided that (i) with respect
to any Net Insurance/Condemnation Proceeds relating to the assets of a
Joint Venture, such Net Insurance/Condemnation Proceeds shall only include
the portion of such Net Insurance/Condemnation Proceeds received by the
Borrower or any of its Subsidiaries and (ii) Net Insurance/Condemnation
Proceeds received by any Subsidiary shall be reduced by all contractually
required distributions and other payments made to other interest holders of
such Subsidiary in connection with the receipt thereof.
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"New Secured Debt" means any Indebtedness incurred pursuant to Section
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6.02(m).
"Permitted Debt Refinancing" means Indebtedness incurred or issued to
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replace or refinance the Indebtedness under this Agreement or the Revolving
Loans, as the case may be, which Indebtedness shall either be (i) unsecured
or (ii) secured by Liens under the Security Documents (on an equal and
ratable basis with the remaining Obligations as set forth therein) provided
that (A) no maturities of such Indebtedness shall be prior to the Term Loan
Maturity Date (as such term is defined in the Credit Agreement) and (B) the
terms and conditions governing such Indebtedness shall be substantially
similar to the terms and conditions governing the Loans under this
Agreement or the Revolving Loans, as the case may be, as determined by the
Credit Agreement Administrative Agent in its sole reasonable discretion.
"Permitted Secured Debt" at any time, means and includes any Permitted
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Debt Refinancing and any Additional Secured Debt then outstanding.
"Qualified Intermediary" means a "qualified intermediary" under
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Section 1031 of the Code.
"Real Property Asset" means, at any time of determination, any real
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property interest (whether leasehold, fee or otherwise) owned by a Loan
Party (or a Person that is then required to become a Loan Party under
Section 5.09(b)) in any domestic U.S. or Canadian Real Property which may
be encumbered by a Mortgage without any violation of, incurrence of
sanctions under, or requirement to obtain a consent from, or make a payment
(other than a nominal one) to, the counterparty (other than the Borrower or
its Subsidiaries) under, any lease, ground lease, management agreement,
franchise agreement, purchase money mortgage or other pre-existing
contractual arrangement (including the organizational documents of a
Special Purpose Subsidiary (but of no other Person)), in each case binding
upon such Loan Party in respect of such Real Property.
"Second Amendment and Restatement" means the Second Amendment and
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Restatement to this Agreement, dated as of January 16, 2002.
"Second Amendment and Restatement Effective Date" shall mean the date
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the Second Amendment and Restatement became effective in accordance with
its terms.
"Specified Purposes" means (i) to avoid or to cure defaults, events of
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defaults and/or covenant violations under Existing Mortgage Debt, (ii) make
payments on Existing Mortgage Debt, (iii) refinance all or any part of any
Existing Mortgage Debt and/or (iv) extend maturities of and/or other
payments on , or other obligations under, Existing Mortgage Debt.
4. Section 2.09 of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended by (i) deleting clauses (b), (c) and (d) in their
entirety; and (ii) inserting therein the following new clauses (b), (c), (d),
(e) and (f) immediately following clause (a) thereof:
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"(b) In addition to any other mandatory prepayments pursuant to this
Section 2.09, promptly following the receipt by the Borrower or any of its
Subsidiaries of any Net Cash Proceeds from the issuance or incurrence of
any Indebtedness of the Borrower or any of its Subsidiaries (other than any
Permitted Debt Refinancing), the Borrower shall apply 100% (or the
Designated Percentage in the case of an Existing Mortgage Refinancing) of
such Net Cash Proceeds in accordance with Section 2.09(e).
(c) In addition to any other mandatory prepayments pursuant to this
Section 2.09, within five Business Days following the receipt by the
Borrower or any of its Subsidiaries of any Net Insurance/Condemnation
Proceeds, the Borrower shall apply 100% of such Net Insurance/Condemnation
Proceeds in accordance with Section 2.09(e).
(d) In addition to any other mandatory prepayments pursuant to this
Section 2.09, if on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Disposition made pursuant to
Section 6.05(d), (e) or (i) or any Exchange, then the Borrower shall within
five Business Days following the receipt of such Net Cash Proceeds (A)
deliver a Net Cash Proceeds Notice to the Administrative Agent and (B)
apply the Designated Percentage of such Net Cash Proceeds in accordance
with Section 2.09(e).
(e) The Net Cash Proceeds required to be applied in accordance with
this Section 2.09(e) shall be applied (A) first, to the extent the
Indebtedness which gives rise to such payment obligation is purchase money
Indebtedness (including Capital Lease Obligations) or Assumed Indebtedness,
to finance the related acquisition, (B) second, to prepay the scheduled
repayments under the Senior Credit Facilities (if any) due during the
calendar year in which such Net Cash Proceeds are received (in direct order
of maturity) and (C) third, to repay outstanding Term Loans, Revolving
Loans, Loans (or any Permitted Debt Refinancing that refinanced same) and
loans (if any) under any Permitted Debt Refinancing that refinanced the
Revolving Loans, pro rata (based on the principal amount of Term Loans then
outstanding, the principal amount of Loans then outstanding (or of the
loans under any Permitted Debt Refinancing that refinanced the same) and
the then Total Revolving Commitment (as defined in the Credit Agreement)
(or the total commitments under any Permitted Debt Refinancing that
refinanced the Revolving Loans)), with any repayment of Revolving Loans
pursuant to this Section 2.11(e) as a result of (x) the incurrence of New
Secured Debt or Additional Secured Debt or (y) an Asset Disposition or
Exchange of a Mortgaged Property or Excluded Property (whether or not
constituting a Mortgaged Property but other than an Excluded Property
disposed of pursuant to a Designated Excluded Properties Sale) to reduce
the Total Revolving Commitment (as defined in the Credit Agreement) in the
amount of such repayment.
(f) If the Borrower is required by this Section 2.09 to repay any
Eurodollar Loans and such prepayment will result in the Borrower being
required to pay breakage costs under Section 2.13 (any such Eurodollar
Loans, "Affected Loans"), the Borrower may elect, by notice to the
Administrative Agent, to have the provisions of the following sentence be
applicable. At the time any Affected Loans are otherwise required to be
repaid, the Borrower may elect to deposit 100% (or such lesser percentage
elected by the
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Borrower) of the aggregate principal amount that otherwise would have
been repaid in respect of the Affected Loans with the Administrative Agent
to be held as security for the Obligations pursuant to a cash collateral
agreement to be entered into in form and substance satisfactory to the
Administrative Agent, with such cash collateral to be released from such
cash collateral account (and applied to repay the principal amount of such
Loans) upon each occurrence thereafter of the last day of an Interest
Period applicable to the relevant Loans (or, such earlier date or dates as
shall be requested by the Borrower), with the amount to be so released and
applied on the last day of each Interest Period to be the amount of the
Loans to which such Interest Period applies (or, if less, the amount
remaining in such cash collateral account)."
5. Section 9.01(b) of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended in its entirety to read:
"(b) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and
Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0/xx/ Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Loan and Agency Services (Telecopy No. (212)
552-5701), with a copy to JPMorgan Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxxx Mix (Telecopy No. (000) 000-0000);"
6. The Borrower hereby agrees that it will not (i) change, extend
or terminate Section 6.02(m) of the Increasing Rate Note Purchase and Loan
Agreement without the consent of the Majority Lenders and (ii) change, waive,
modify or vary Section 5.10(a) of the Increasing Rate Note Purchase and Loan
Agreement in a manner affecting the rights and benefits of the Lenders (and not
all Secured Parties in a like or similar manner), without the consent of the
Required Obligees. The Borrower further agrees that any violation under this
Section 6 shall result in an Event of Default, as defined in, and under, the
Increasing Rate Note Purchase and Loan Agreement.
7. The Increasing Rate Note Purchase and Loan Agreement is hereby
further amended by deleting Schedules I, II and VI and inserting new Schedules
XIV, XV and XVI attached hereto.
II. Miscellaneous
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1. In order to induce the undersigned Lenders to enter into this
Second Amendment and Restatement, the Borrower hereby represents and warrants
that (x) no Default or Event of Default exists on the Second Amendment and
Restatement Effective Date after giving effect to this Second Amendment and
Restatement and (y) all of the representations and warranties contained in the
Increasing Rate Note Purchase and Loan Agreement shall be true and correct in
all material respects as of the Second Amendment and Restatement Effective Date
after giving effect to this Second Amendment and Restatement, with the same
effect as though such representations and warranties had been made on and as of
the Second Amendment and Restatement Effective Date (it being understood that
any representation or warranty made as of a specified date shall be required to
be true and correct in all material respects only as of such specific date).
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2. This Second Amendment and Restatement is limited as specified
and shall not constitute a modification, acceptance or waiver of any other
provision of the Increasing Rate Note Purchase and Loan Agreement or any other
Loan Document.
3. This Second Amendment and Restatement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which counterparts when executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A complete set of counterparts shall be lodged with the Borrower and
the Administrative Agent.
4. THIS SECOND AMENDMENT AND RESTATEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
5. This Second Amendment and Restatement shall become effective on
the date (the "Second Amendment and Restatement Effective Date") when each of
the following conditions shall have been satisfied:
(i) the Borrower and the Required Lenders shall have signed a
counterpart hereof (whether the same or different counterparts) and shall
have delivered (including by way of facsimile transmission) the same to the
Administrative Agent at White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxxx X. Xxxx (facsimile number 212-354-8113);
(ii) the amendment and restatement of the Senior Credit Facilities
shall have become effective in accordance with its terms;
(iii) the Borrower shall have paid to the Administrative Agent and the
Lenders all reasonable fees, costs and expenses (including, without
limitation, reasonable legal fees and expenses thereof) payable to the
Administrative Agent and the Lenders to the extent then due, as evidenced
by an invoice delivered to the Borrower no less than three Business Days
prior to the Second Amendment and Restated Effective Date; and
Unless the Administrative Agent has received actual notice from any
Lender that the conditions contained above have not been met with satisfaction,
upon the satisfaction of the condition described in clause (i) of the
immediately preceding sentence and upon the Administrative Agent's good faith
determination that the other conditions described above have been met, the
Second Amendment and Restatement Effective Date shall be deemed to have
occurred, regardless of any subsequent determination that one or more of the
conditions thereto had not been met (although the occurrence of the Second
Amendment and Restatement Effective Date shall not release the Borrower from any
liability for failure to satisfy one or more of the applicable conditions
specified above).
6. The Borrower shall pay each Lender which executed and delivered
a counterpart to this Second Amendment and Restatement on or prior to 5:00 p.m.
(New York time) on Thursday, January 24, 2002, a non-refundable cash fee (the
"Amendment Fee") in an amount equal to 0.25% of the sum of the outstanding
principal amount of the Loans of such
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Lender on the Second Amendment and Restatement Effective Date, which fees shall
be paid by the Borrower to the Administrative Agent for distribution to the
Lenders not later than the second Business Day following the Second Amendment
and Restatement Effective Date.
7. From and after the Second Amendment and Restatement Effective Date
all references in the Increasing Rate Note Purchase and Loan Agreement and the
other Loans Documents shall be deemed to be references to the Increasing Rate
Note Purchase and Loan Agreement as modified hereby.
* * * * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Waiver to be duly executed and delivered as of the date first above
written.
WYNDHAM INTERNATIONAL, INC.,
By ______________________________________
Title:
JPMORGAN CHASE BANK (as successor to The
Chase Manhattan Bank),
Individually and as Administrative Agent,
By ______________________________________
Title:
X.X. XXXXXX SECURITIES INC. (as successor
to Chase Securities Inc.),
as Lead Arranger and Book Manager
By ______________________________________
Title:
NAME OF LENDER:
By: _____________________
Name:
Title:
