EXHIBIT 99.2
FIFTH AMENDMENT AND RESTATEMENT
FIFTH AMENDMENT AND RESTATEMENT (this "Fifth Amendment and
Restatement"), dated as of May 29, 2003, among WYNDHAM INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"), the Lenders from time to time party to
the Credit Agreement referred to below (the "Lenders"), X.X. XXXXXX SECURITIES
INC. ("XX Xxxxxx"), as Lead Arranger and Book Manager, BANK OF AMERICA, N.A. and
DEUTSCHE BANK TRUST COMPANY AMERICAS as Syndication Agents (each a "Syndication
Agent", together the "Syndication Agents"), CREDIT LYONNAIS NEW YORK BRANCH, as
Documentation Agent, BEAR XXXXXXX CORPORATE LENDING INC., as Co-Documentation
Agent (each a "Documentation Agent", and together the "Documentation Agents")
and JPMORGAN CHASE 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 Credit Agreement referred to
below immediately prior to the Fifth Amendment and Restatement Effective Date
referred to below.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders, XX Xxxxxx, the Syndication Agents,
the Documentation Agents and the Administrative Agent are parties to a Credit
Agreement, dated as of June 30, 1999 (as amended, modified or supplemented to,
but not including, the date hereof, the "Credit Agreement");
WHEREAS, the parties hereto wish to effect the agreements and
amendments herein provided; and
WHEREAS, subject to the terms and conditions of this Fifth Amendment,
the parties hereto agree as follows:
I. Purpose
This Fifth Amendment and Restatement and the Fourth Amendment and
Restatement of the Increasing Rate Note Purchase and Loan Agreement dated as of
the date hereof (the "Fourth IRL Amendment") (i) provide for certain amendments
to and waivers under the Credit Agreement and the Increasing Rate Term Loan
Facility to become effective on the Fifth Amendment and Restatement Effective
Date, (ii) provide for the extension of the maturity of the Revolving
Commitments held by Lenders consenting thereto and of the Increasing Rate Term
Loans held by the Lenders consenting thereto, in each case as of the Extension
Date (as defined in Section III.1(A) of this Fifth Amendment and Restatement),
and (iii) provide for additional amendments to the Credit Agreement and
Increasing Rate Term Loan Facility to become effective as of the Extension Date.
II. Agreements
1. The Lenders hereby authorize the Collateral Agent to enter into
(and to the extent related to Mortgages record if appropriate) amendments,
waivers, consents or other
modifications to the Guaranty and Collateral Agreement and the Mortgages in form
and substance satisfactory to the Collateral Agent that would (i) create Liens
on the escrow accounts created to hold proceeds of Designated Indebtedness and
Designated Excluded Properties Sales and (ii) effective on the Extension Date,
remove clause (y) of the first sentence of Section 4.2 thereof (i.e., the
requirement for the consent of the Required IRL Lenders (as defined therein) for
amendments, waivers, modifications and/or variations to the Guaranty and
Collateral Agreement) and remove the reference to "and the Required IRL Lenders"
in clause (A) of the proviso following such clause (y).
2. The Lenders hereby consent to (x) the amendments and agreements
contained in the Fourth IRL Amendment and (y) to the conversion, as of the
Extension Date, of certain Increasing Rate Term Loans to Term Loans II as
provided therein and herein.
3. Notwithstanding any other provision of the Credit Agreement or
this Fifth Amendment and Restatement, no amendment, change or waiver after the
Fifth Amendment and Restatement Effective Date of (I) (x) the definition of
"Extension Date" (other than as set forth in clause (II) of this Section II.3),
(y) Section 2.09(d) and/or (z) if prior to the Modified Extension Date, Section
2.11(f) may be made without the consent of Consenting Revolving Lenders holding
at least 66-2/3% of the Designated Revolving Commitments at the time of such
amendment, change or waiver (with Modified Extension Date, Consenting Revolving
Lenders and Designated Revolving Commitments having the definitions in effect on
the Fifth Amendment and Restatement Effective Date) and (II) (w) clauses (i) and
(ii) of the proviso of the definition of "Extension Date", (x) the definitions
of "Designated Property", "EP Escrow", "Excluded Property", "Specified Escrow
Amount", "Specified Purposes" or "Utilized", (y) the definitions of "Designated
Excluded Properties Sales" and "Wrap Refinancing", Section 2.08, Section 2.09,
Section 2.11 or Section 6.03(q) of the Credit Agreement and Section III.2.A and
IV.1.A of this Fifth Amendment and Restatement, in each case to change or modify
the references therein to "Excluded Property" or "Excluded Properties" or the
use of the proceeds of Excluded Properties and/or (z) Section III.3 of this
Fifth Amendment and Restatement may be made without the consent of each Lender
at the time constituting a Consenting Revolving Lender, provided that the
foregoing clauses (II)(x), (II)(y) and (II)(z) shall cease to be effective on
the Modified Extension Date if the Extension Date has not occurred.
4. It is agreed that no Designated Excluded Property Sale will be
effected, and no Designated Indebtedness will be incurred, at any time when an
Event of Default under Section 7.01 and/or 7.05 exists, provided that this
Section II.4 shall cease to be effective on the Modified Extension Date if the
Extension Date has not occurred.
III. Amendments as at Fifth Amendment and Restatement Effective Date
1. As of the Fifth Amendment and Restatement Effective Date, the
following amendments to the Credit Agreement shall become effective:
(A) Section 1.01 is amended by (i) inserting the following new
definitions in appropriate alphabetical order:
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"Advisor" means a Person selected by the Administrative Agent prior to
the Fifth Amendment and Restatement Effective Date to make appraisals with
respect to Specified Asset Dispositions.
"Apollo/THL Affiliate" means (i) Apollo Management, L.P., (ii) Xxxxxx
X. Xxx Partners, L.P. and (iii) any Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with either of the
Persons identified in clauses (i) and/or (ii).
"Approved Value" means with respect to each Specified Asset
Disposition an amount equal to at least 90% of the value of the property that is
the subject of such Specified Asset Disposition as established by an appraisal
(based on a scope of work provided by the Administrative Agent) of such property
completed by the Advisor no earlier than 120 days prior to the consummation of
such Specified Asset Disposition.
"Consenting IRL Lenders" means (i) each IRL Lender that has consented
to the Fourth IRL Amendment prior to the Cut-Off Time as provided for in Section
III.5(i) of the Fourth IRL Amendment and (ii) any Person that has acquired after
the Fifth Amendment and Restatement Effective Date the Increasing Rate Term
Loans of any IRL Lender not so consenting, to the extent each Person has
executed and delivered to the Administrative Agent a counterpart of the Fourth
IRL Amendment.
"Consenting Revolving Lenders" means (i) each Lender with a Revolving
Commitment that has consented to the Fifth Amendment and Restatement prior to
the Cut-Off Time and (ii) any Person that has acquired after the Fifth Amendment
and Restatement Effective Date and prior to the Extension Date the Revolving
Commitment and Revolving Loans of any Lender not so consenting, to the extent
such Person has executed and delivered to the Administrative Agent a counterpart
of this Fifth Amendment and Restatement, it being agreed that within 10 Business
Days after the Fifth Amendment and Restatement Effective Date the Administrative
Agent will deliver to all Lenders and all IRL Lenders a Schedule setting forth
the names of all Persons included under clause (i) above and under clause (i) of
the definition of Consenting IRL Lenders.
"Cut-Off Time" has the meaning provided in the Fifth Amendment and
Restatement.
"Designated Disposition" means a Disposition where (i) an MAI
appraisal of the assets being disposed of has been effected by a firm selected
by the Administrative Agent and (ii) the sales price is at least equal to 100%
of the value of such assets as determined by such MAI appraisal.
"Designated IRL Loans" means and includes at any time the Increasing
Rate Term Loans held by each Consenting IRL Lender at such time.
"Designated Non-Recourse Indebtedness" means Non-Recourse Indebtedness
of a Special Purpose Subsidiary where, upon the occurrence of any event that
would create an Event of Default under Section 7.05 and/or 7.07, none of such
Indebtedness of such Special Purpose Subsidiary becomes the Indebtedness of the
Borrower or any other Subsidiary Guarantor.
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"Designated Revolving Commitments" means and includes at any time the
Revolving Commitment of each Consenting Revolving Lender at such time.
"Extension Date" means the first date by which the aggregate repayment
of Designated IRL Loans made after the Fifth Amendment and Restatement Effective
Date equals $85 million, provided that there shall be no Extension Date if (i)
any Excluded Property, any proceeds of any Designated Indebtedness and/or any
Designated Excluded Properties Sale or any other cash of the Borrower or any
Subsidiary are added to the properties in Xxxxxx Pool I, (ii) all the
Indebtedness issued pursuant to the Xxxxxx Pool I has not been repaid in full or
the maturity of all such Indebtedness has not been extended (on a stand alone
basis or combined with other Indebtedness) to a date later than June 30, 2006
and/or (iii) the Extension Date has not occurred on or prior to the date which
is nine months after the Fifth Amendment and Restatement Effective Date.
"Fifth Amendment and Restatement" means the Fifth Amendment and
Restatement to this Agreement dated as of May 29, 2003.
"Fifth Amendment and Restatement Effective Date" has the meaning
provided in the Fifth Amendment and Restatement.
"Fourth IRL Amendment" has the meaning provided in the Fifth Amendment
and Restatement.
"IRL Lender" means each Lender under and as defined in the Increasing
Rate Note Purchase and Loan Agreement dated as of June 30, 1999 as amended
(including by the Fourth IRL Amendment).
"IRL Percentage" means at any time a percentage equal to 100% minus
the TL Percentage at such time.
"Xxxxxx Pool I" means the Mortgage Loan dated June 28, 1999, from
Xxxxxx Brothers Holdings, Inc., as assigned to LaSalle Bank National
Association, as trustee of the SASCO Floating Rate Commercial Mortgage Trust
1999-C3, Multiclass Pass-Through Certificates, Series 1999-C3, as assigned to
Xxxxxx Brothers Holdings, Inc., to various subsidiaries of Wyndham
International, Inc., in the original principal amount of $235,000,000.
"Leverage Ratio" means on any date the ratio of (i) Total Indebtedness
on such date to (ii) Total Adjusted EBITDA for the 12 months ended on such date.
"Modified Extension Date" means the Extension Date or if the extension
date has not occurred on or prior to the date which is the nine month
anniversary of the Fifth Amendment and Restatement Effective Date, then such
nine month anniversary date shall constitute the Modified Extension Date.
"Pro Forma Leverage Ratio" means with respect to any Asset Disposition
the Leverage Ratio as at the last day of the last month ended prior to such
Asset Disposition modified to subtract (x) from the Total Indebtedness included
in determining such Ratio the gross proceeds received by the Borrower and its
Subsidiaries from such Asset Disposition and
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(y) from the Total Adjusted EBITDA included in determining such Ratio the
Property EBITDA for the 12 months then ended of the property the subject of such
Asset Disposition.
"Properties Sale List" shall mean a list of properties which the
Borrower is actively considering selling, specifying an aggregate proposed sale
price for all the properties within designated categories and detail for each
property as to what amounts would have to be deducted when determining the Net
Cash Proceeds resulting from a sale thereof under clauses (a)(ii) and (a)(iv) of
the definition of Net Cash Proceeds.
"Property EBITDA" means for any period for any property the subject of
an Asset Disposition the amount that would have been EBITDA for such period for
such property if (i) such property were to constitute a "Person", (ii) clause
(b) of the definition of EBITDA were limited to business interruption insurance
proceeds and condemnation proceeds paid only in respect of such property and
(iii) clause (d) of the definition of EBITDA were deleted, provided that such
amount shall not exceed the amount included for such property in Total Adjusted
EBITDA.
"Specified Asset Disposition" means any Asset Disposition other than
an Asset Disposition (i) if the Pro Forma Leverage Ratio determined after giving
effect to such Asset Disposition is less than the Leverage Ratio determined as
of the last day of the last month then ended, (ii) if the Property EBITDA of the
property the subject thereof for the 12 months ended as of the last day of the
last month then ended is less than $1.5 million, provided that the aggregate
gross sale proceeds of Asset Dispositions effected prior to the Extension Date
and excluded from constituting Specified Asset Dispositions pursuant to this
clause (ii) shall not exceed $150 million or (iii) consummated on or after the
Fifth Amendment and Restatement Effective Date and prior to the Extension Date
if the repayment of IRL Loans from the proceeds of such Asset Disposition are
excluded in determining whether the Extension Date has occurred (i.e., whether
$85 million of IRL Loans have been repaid during such period).
"TL Percentage" means at any time the percentage obtained by dividing
(i) the outstanding principal amount of Term Loans at such time by (ii) the sum
of (x) the outstanding principal amount of Term Loans at such time, (y) the
outstanding principal amount of Designated IRL Loans at such time and (z) the
aggregate Designated Revolving Commitments at such time.
; and (ii) changing the definition of "Maximum Permitted Expenditure Amount" to
read (provided that if the Extension Date has not occurred by the Modified
Extension Date the amendment provided for in this clause (ii) shall terminate on
the Modified Extension Date):
"Maximum Permitted Expenditures Amount" means, for (I) the fiscal year
of the Borrower ending on December 31, 2003, $125,000,000, (II) the fiscal year
of the Borrower ending on December 31, 2004, (i) $125,000,000 plus (ii) 50% of
the portion of the Maximum Permitted Expenditures Amount for the immediately
preceding fiscal year not utilized to make Permitted Expenditures and (III) each
of the fiscal years of the Borrower ending on or after December 31, 2005, (i)
$125,000,000 plus (ii) 25% of the portion of the Maximum Permitted Expenditures
Amount for the immediately preceding fiscal year not utilized to make Permitted
Expenditures.
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(B) Section 2.02(a) is amended for the period commencing on the Fifth
Amendment and Restatement Effective Date and ending on the Modified Extension
Date by (x) adding after the reference therein to "Revolving Commitments" the
phrase "as in effect on the Fifth Amendment and Restatement Effective Date" and
(y) adding a new sentence at the end thereof to read: "On the Modified Extension
Date if the Extension Date has not occurred, the Borrower shall incur and repay
Revolving Loans so that after giving effect thereto the outstanding Revolving
Loans shall be made by all Revolving Lenders ratably in accordance with their
respective Revolving Commitments in effect on such date."
(C) Section 2.09 is amended by adding at the end thereof the
following new paragraph (d):
"(d) On each date on and after the Fifth Amendment and Restatement
Effective Date and on or prior to the Modified Extension Date on which
Designated IRL Loans are repaid (mandatorily or voluntarily) the Designated
Revolving Commitments shall be automatically and permanently reduced in an
aggregate amount equal to the amount of such repayment of Designated IRL
Loans, such reduction to apply pro rata among the Designated Revolving
Commitments."
(D) Section 2.11 is amended for the period commencing on the Fifth
Amendment and Restatement Effective Date and ending on the Modified Extension
Date by (i) changing all of paragraph (f) thereof beginning with the reference
to "(C)" to read:
"(C) third, to repay outstanding Term Loans in an aggregate amount equal to
the TL Percentage of such Net Cash Proceeds and to repay outstanding
Designated IRL Loans in an aggregate amount equal to the IRL Percentage of
such Net Cash Proceeds."
and (ii) adding a new paragraph (i) to read:
"(i) If the application of only a portion of the Net Cash Proceeds
required to be applied pursuant to Section 2.11(c), (d) or (e) would result
in the Extension Date occurring, then only such portion will be applied on
the date specified therefor in any such Section, with the remainder of such
Net Cash Proceeds to be applied pursuant to Section 2.11(f) on the next
succeeding Business Day."
(E) Section 3.16(a) is amended by adding a new sentence at the end
thereof to read:
"Prior to the Modified Extension Date, up to $10 million of proceeds of
Revolving Loans may be utilized to prepay principal on outstanding
Designated IRL Loans."
2. As of the Fifth Amendment and Restatement Effective Date, the
following additional amendments to the Credit Agreement shall become effective:
(A) Section 1.01 of the Credit Agreement is amended by (i) adding at
the end of the definition of "Consent Property" the phrase ", it being
understood that upon the financing of any such Real Property as permitted by
Section 6.02(m) such Real Property shall cease to constitute a Consent
Property"; (ii) in each of the definitions of "Designated Indebtedness" and
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"Designated Excluded Properties Sale" (x) adding after the reference therein to
", provided that" the phrase "(i) at the written election of the Borrower any or
all of the amounts so deposited shall be released to be applied to repay Loans
pursuant to, and as repayments under, Section 2.11(f) and (ii)" and (y) changing
the phrase "at a time when the Obligations have become due and payable shall" to
read "on December 31, 2005" and (z) adding at the end thereof the phrase ", it
being understood that the Collateral Agent shall have a perfected first priority
security interest in such escrow account and in all amounts deposited therein";
(iii) in the definition of "Designated Percentage" (x) inserting after the
reference to "less the lower of" the phrase "(A) the lower of" and (y) adding at
the end of such definition the phrase "and (B) a percentage (which may be zero)
selected at the time by the Borrower (by written notice to the Administrative
Agent)"; and (iv) changing the definitions of "Non-Excluded Subsidiaries",
"Specified Purposes" and "Wrap Refinancing" to read:
"Non-Excluded Subsidiaries" means each Subsidiary of the Borrower
provided that a Special Purpose Subsidiary (I) with Indebtedness of less than
$25.0 million and (II) not included in clause (I) but with no Indebtedness other
than Designated Non-Recourse Indebtedness shall each not constitute a
Non-Excluded Subsidiary, provided that any Special Purpose Subsidiary otherwise
excluded from constituting a Non-Excluded Subsidiary pursuant to the foregoing
will constitute a Non-Excluded Subsidiary (x) for purposes of Section 7.05 if
the commencement (or authorization) of proceedings of the type referred to in
such Section by or against such Special Purpose Subsidiary is individually, or
in the aggregate with the commencement of such proceedings by or against other
Special Purpose Subsidiaries, reasonably likely to have a Material Adverse
Effect or (y) for purposes of Section 7.07 if the entering of judgments of the
type referred to in such Section is individually, or in the aggregate with the
entering of such judgments against other Special Purpose Subsidiaries,
reasonably likely to have a Material Adverse Effect.
"Specified Purposes" means (i) to avoid or to cure defaults, events of
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, provided that curing a
shortfall in any loan to value ratio in a collateralized mortgage obligations or
other similar collateralized debt structure (each a "Structural Issue")
resulting from the sale of any property or properties securing or supporting
such Structural Issue shall not constitute a Specified Purpose.
"Wrap Refinancing" means a financing that refinances two or more
issues of Existing Mortgage Debt, which financing is secured by, and only by,
(x) the properties that secured the issues of Existing Mortgage Debt being
refinanced (other than any property listed on Schedule II to the Third Amendment
and Restatement provided that the Condado Plaza property and/or Bourbon Orleans
property may be included if the inclusion thereof will result in the respective
Wrap Refinancing generating Net Cash Proceeds to be used to repay Loans (and
prior to the Extension Date, Designated IRL Loans) pursuant to Section 2.11 that
are at least (x) $40 million in the case of the Condado Plaza property and/or
(y) $4 million in the case of the Bourbon Orleans property greater than the Net
Cash Proceeds that would be generated for such purposes if the Wrap Refinancing
did not include such property) and (y) Excluded Properties to the extent
permitted by Section 6.03(q).
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(B) Section 2.08(e) is amended by changing the phrase "Loans made by
it" in the first sentence thereof to read "all Loans made by it under a Facility
(for up to all Facilities under which it has Loans outstanding)".
(C) Section 3.19 is amended by (I) changing the "No" at the beginning
of said Section to read "To the knowledge of the Borrower, no", (II) adding the
text "which statement or omission, if corrected, would contain any fact that
would reasonably be expected to have a Material Adverse Effect" immediately
preceding the period at the end of the first sentence of said Section and (III)
changing the word "The" at the beginning of the second sentence of said Section
to read "To the knowledge of the Borrower, the".
(D) Section 4.02 is amended by (x) adding after the reference to
"3.06" the phrase ", 3.09, 3.10, 3.13, 3.14," and (y) changing the reference to
"and 3.16" to read ", 3.16 and 3.19".
(E) Section 5.02 is amended by (i) changing the reference in the
lead-in clause to "(j) and (k)" to read "(j) and (n)", (ii) deleting the "and"
at the end of clause (j), (iii) renumbering clause (k) as clause (n) and (iv)
inserting new clauses (k), (l) and (m) to read:
"(k) within 30 days following (x) the Fifth Amendment and Restatement
Effective Date, a copy of the initial Properties Sale List and (y) each
anniversary of the Fifth Amendment and Restatement Effective Date, a copy of the
Properties Sale List updated as of such anniversary;
(l) copies of the information required by Exhibit A to the Fifth
Amendment and Restatement on the basis, at the times and in the detail set forth
on Exhibit A;
(m) promptly after the Borrower's Board of Directors has approved
same, a copy of each annual budget, which shall include property by property
information; and"
(F) Section 5.10(a) is amended by changing the reference to "May 1,
2003" occurring in clause (iii)(z) thereof and in clause (II) thereof to read
"30 days after the Fifth Amendment and Restatement Effective Date (or if earlier
the Extension Date)".
(G) Section 6.03 is amended by (i) inserting in clause (r) thereof
prior to the phrase "to secure" the phrase "and/or (z) any other Real Property
(including Consent Properties)" and (ii) changing the second reference in said
clause (r) to "Excluded Properties" to read "any Real Property".
(H) Section 6.04 is amended by adding after the reference to "except"
in the lead-in phrase "for transactions permitted by Section 6.05 and except".
(I) Section 6.05(d) is amended in its entirety to read:
"(d) Asset Dispositions (including pursuant to Buy/Sell Arrangements)
which in each case shall be for an amount equal to at least the fair market
value thereof (as determined by the senior management of the Borrower and
certified in writing to the Administrative Agent, which certification shall also
confirm that, after giving effect to such Asset Disposition, the
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Borrower shall remain in pro forma compliance with all of its covenants herein)
for at least 75% Cash Consideration (other than in connection with a Timeshare
Development Transaction, the Disposition of which shall not be subject to such
limitation); provided that (i) within five Business Days following the date of
consummation of any such Asset Disposition, the Borrower shall deliver a Net
Cash Proceeds Notice and any Net Cash Proceeds thereof shall be applied as
required under Section 2.11(f), (ii) such Asset Disposition may be for less than
75% Cash Consideration if it constitutes a Permitted Structured Disposition,
(iii) if such Asset Disposition is a Non-Core Assets Sale, such Asset
Disposition may be for less than 75% Cash Consideration but shall be for at
least 70% Modified Cash Consideration and (iv) if a Specified Asset Disposition,
the total consideration received by the Borrower or such Subsidiary constitutes
Approved Value";
(J) Section 6.09 is amended by adding after the end of such Section
the following sentence:
"In addition to the foregoing, without the consent of the Required Lenders,
neither the Borrower nor any Subsidiary shall enter into any transaction in
respect of the Disposition of any asset with any Apollo/THL Affiliate
involving an amount in cash and/or the fair value of assets in excess of
$500,000 other than a Designated Disposition."
(K) Exhibit B is amended by (x) deleting the reference to "(III)," in
paragraphs 2 and 8 thereof, (y) inserting after the reference to "VI" in such
paragraphs the phrase ", and Sections 3.02, 3.03, 3.04, 3.05, 3.06 and 3.16,"
and (z) deleting in paragraph 8 thereof the phrase "and in each of the other
Loan Documents".
3. On the Fifth Amendment and Restatement Effective Date, each of
the Riverfront New Orleans property ("RNO") and the Wyndham Newark property
("WN") shall cease to constitute an Excluded Property and the Borrower shall (x)
prior to the Fifth Amendment and Restatement Effective Date subject RNO, WN and
the LaGuardia Wyndham property (the "Properties") to a recorded mortgage in form
and substance satisfactory to the Administrative Agent and (y) take within 60
days following the Fifth Amendment and Restatement Effective Date all other
actions with respect to each of the Properties that it would be required under
Section 5.10(a) to take if each such property were an Excluded Property,
provided that if the Extension Date has not occurred by the Modified Extension
Date then, on the Modified Extension Date, RNO and WN will each constitute an
Excluded Property to the extent it would have been an Excluded Property on such
date in the absence of this Section III.3 (it being understood that at no time
shall the LaGuardia Wyndham constitute an Excluded Property).
IV. Amendments as at Post-Extension Date
1. As of 00:01A.M. (New York time) on the date immediately following
the Extension Date, the following amendments to the Credit Agreement shall
become effective:
(A) Section 1.01 of the Credit Agreement is amended by (i) in each of
the definitions of "Designated Excluded Properties Sale" and "Designated
Indebtedness" (x) adding "(a)" after the reference therein to "(i)" and (y)
changing the reference to "shall be released" to
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read "and (b) at the time (if any) they become Specified Escrow Amounts all
amounts (if any) in such escrow account shall, in each case, be released"; (ii)
changing clause (a)(v) of the definition of "Net Cash Proceeds" in its entirety
to read "(v) the Liquidity Holdback for such Asset Disposition or Exchange";
(iii) changing the reference to "Section 2.11(e)" in the definition of
"Scheduled Repayment" to "Section 2.11(h)"; (iv) deleting the definition of
"Term Loan Maturity Date"; (v) changing the definitions of "Applicable Margin",
"Class", "Designated Percentage", "Excluded Properties", "Facilities", "Maturity
Date", "Revolving Commitment", "Revolving Percentage", "Swingline Expiry Date"
and "Total Cash Interest Expense" in their entirety to read:
"Applicable Margin" means (i) (A) with respect to ABR Term Loans II
and ABR Revolving Loans IV, 4.75%, (B) with respect to ABR Term Loans I and ABR
Revolving Loans III, 3.75% and (C) with respect to all other ABR Revolving
Loans, 2.75%, (ii) (A) with respect to Eurodollar Term Loans II and Eurodollar
Revolving Loans IV, 5.75%, (B) with respect to Eurodollar Term Loans I and
Eurodollar Revolving Loans III, 4.75% and (C) with respect to all other
Eurodollar Revolving Loans, 3.75%, and (iii) with respect to Commitment Fees,
..50%.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Term Loans I,
Term Loans II, Revolving Loans I, Revolving Loans II, Revolving Loans III,
Revolving Loans IV or Swingline Loans.
"Designated Percentage" means 100% less the lower of (A) the lowest of
(i) 25%, (ii) 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 2.11(c) and/or (e) (i.e. that is not
required to be applied to repay Indebtedness pursuant to Section 2.11(f)) 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 fourth anniversary of the Second Amendment and Restatement Effective Date to
the Term Loan Maturity Date) and (iii) the maximum percentage that will result
in the amount of Net Cash Proceeds from such issuance of Indebtedness, Asset
Disposition or Exchange that the Borrower may so retain not exceeding an amount
equal to $100,000,000 less the Borrower Liquidity Amount in effect immediately
prior to receipt of the Net Cash Proceeds of such incurrence of Indebtedness,
Asset Disposition or Exchange, provided that for any issuance of Indebtedness,
Asset Disposition and/or Exchange effected after the Extension Date and on or
prior to Revolving Loan Maturity Date I/II, the Designated Percentage shall be
reduced to the extent necessary to result in the Borrower retaining additional
aggregate Net Cash Proceeds in an amount up to the AR Amount (the "Additional
Retention") provided that at the time of any reduction of the Designated
Percentage pursuant to this proviso the Borrower has provided to the
Administrative Agent a written certificate of a senior officer certifying that
the additional Net Cash Proceeds being retained are required to insure that the
Borrower maintains adequate liquidity to satisfy its expected cash needs and
that after giving effect to the Additional Retention, the aggregate unutilized
Revolving Commitments III (pro forma as at the Revolving Loan Maturity Date I/II
and after any repayment of Revolving Loans III with the Additional Retention)
will be at least $50,000,000, with the Borrower covenanting in such certificate
to retain such additional Net Cash Proceeds not utilized to repay Revolving
Loans III until such
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Revolving Loan Maturity Date I/II (with a default of the Borrower in complying
with such covenant to constitute a default under Section 7.03(b)) and (B) a
percentage (which may be zero) selected at the time by the Borrower (by written
notice to the Administrative Agent).
"Excluded Properties" means the Real Properties set forth on Schedule
XV to this Agreement other than the Riverfront New Orleans and Wyndham Newark
properties plus any additional Real Property received by the Borrower or a
Subsidiary as a result of an Exchange of an Excluded Property; provided that one
Designated Property (if any exist) shall cease to constitute an Excluded
Property on December 31, 2004 and the remaining Designated Properties (if any)
shall cease to constitute Excluded Property on December 31, 2005, it being
understood that (x) upon being Disposed of a property shall cease to constitute
an Excluded Property and (y) upon the financing of any property at the time
constituting an Excluded Property as permitted by Section 6.02(m) such property
shall cease to constitute an Excluded Property.
"Facility" means one of the credit facilities established under this
Agreement, i.e., Term Loan Facility I, Term Loan Facility II, Revolving Loan
Facility I, Revolving Loan Facility II, Revolving Loan Facility III and
Revolving Loan Facility IV.
"Maturity Date" means (i) with respect to Revolving Loans I and
Revolving Loans II, the Revolving Loan Maturity Date I/II, (ii) with respect to
Revolving Loans III and Revolving Loans IV, the Revolving Loan Maturity Date
III/IV, (iii) with respect to Term Loans I, June 30, 2006 and (iv) with respect
to Term Loans II, April 1, 2006.
"Revolving Commitment" means, with respect to any Lender, the
obligation (if any) of such Lender to make Revolving Loans and/or to participate
in Swingline Loans and Letters of Credit in an aggregate principal and/or face
amount not to exceed (w) in the case of a Revolving Lender I, its Revolving
Commitment I, (x) in the case of a Revolving Lender II, its Revolving Commitment
II, (y) in the case of a Revolving Lender III, its Revolving Commitment III and
(z) in the case of a Revolving Lender IV, its Revolving Commitment IV, it being
understood that neither a Revolving Lender I nor a Revolving Lender IV shall
have any obligation to participate in Swingline Loans and/or Letters of Credit.
"Revolving Percentage" means, as to any Lender with a Revolving
Commitment II or Revolving Commitment III at any time, the percentage which such
Lender's Revolving Commitment II or Revolving Commitment III, as the case may
be, then constitutes of the Adjusted Total Revolving Commitment (or at any time
when such Lender's Revolving Commitment shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender's Revolving Loans
then outstanding constitutes of (i) the aggregate principal amount of Revolving
Loans made pursuant to all expired or terminated Revolving Commitments plus (ii)
all Revolving Commitments then in effect, it being understood that the Revolving
Percentage of a Revolving Lender I and of a Revolving Lender IV shall be zero).
"Swingline Expiry Date" means the date which is two Business Days
prior to the Revolving Loan Maturity Date III/IV.
"Total Cash Interest Expense" means the sum of the total cash interest
expense in respect of Total Indebtedness for such period determined in
conformity with GAAP (excluding
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interest capitalized in accordance with GAAP, amortization of deferred financing
costs, Incremental Cash Interest and other non-cash charges and expenses) minus
cash interest income.
; and (vi) inserting the following new definitions in appropriate alphabetical
order:
"Adjusted Total Revolving Commitment" means, at any time, the
aggregate amount of the Revolving Commitments II and the Revolving Commitments
III then in effect.
"Adjusted Total Revolving Extensions of Credit" means, at any time,
the aggregate amount of the Revolving Extensions of Credit of the Revolving
Lenders II and the Revolving Lenders III outstanding at such time.
"AR Amount" shall mean the lesser of (i) $22.5 million and (ii) the
sum of (x) the aggregate outstanding principal amount of the Increasing Rate
Loans and (y) the aggregate Revolving Commitments I and Revolving Commitments
II, in each case as of the Post-Extension Date.
"Benchmark Amount" means the higher of (i) $180 million and (ii) an
amount equal to the aggregate outstanding principal amount of Designated
Revolving Loans on the Post-Extension Date.
"Borrower Liquidity Amount" means at any time the sum of (i) the
Liquidity Amount at such time plus (ii) unrestricted cash on hand in excess of
the average unrestricted cash balance as at the end of each of the last four
quarters as shown on a consolidated balance sheet of the Borrower.
"Conversion Percentage" means the percentage obtained by dividing the
Benchmark Amount by all Designated Revolving Commitments on the Post-Extension
Date.
"Designated Property" means at any time, to the extent such property
is then an Excluded Property and has not been Utilized, (i) the Ft. Lauderdale
Hilton property, (ii) if the property specified in clause (i) is not then a
Designated Property, the Parsippany Summerfield property and (iii) if all the
properties specified in clauses (i) and (ii) are not then Designated Properties,
the Westshore Tampa Bay property.
"Designated Revolving Loans" means Loans made pursuant to the
Designated Revolving Commitments.
"EP Escrow" means each escrow account which holds any proceeds of a
Designated Excluded Properties Sale and/or an incurrence of Designated
Indebtedness.
"Excess Proceeds" means with respect to any Net Cash Proceeds required
to be applied to repay Loans pursuant to Section 2.11(f) an amount equal to the
portion of such Net Cash Proceeds required to be applied to repay Revolving
Loans III (after giving effect to Section 2.11(f)(C)(I)(x) and determined as if
the aggregate principal amount of Revolving Loans III equaled the aggregate
Revolving Commitments III) in excess of the aggregate principal amount of
Revolving Loans III then outstanding.
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"Incremental Cash Interest" means at any time for any period the
aggregate of the cash interest paid on each Revolving Loan III, Revolving Loan
IV and Term Loan II during such period in excess of the interest that would have
been payable during such period on such Loan at a rate 1.00% less than the rate
applicable to such Loan hereunder.
"Liquidity Amount" means, at any time, the aggregate Unutilized
Revolving Commitment of all Revolving Lenders III.
"Liquidity Holdback" means, with respect to any Asset Disposition or
Exchange in any year, an amount equal to the lesser of (x) $20,000,000 (or, if
less, the Net Cash Proceeds of such Asset Disposition or Exchange determined
without giving effect to clause (a)(v) of the definition of Net Cash Proceeds)
less the aggregate Liquidity Holdbacks for all Asset Dispositions and Exchanges
previously effected during such year and (y) once the aggregate Liquidity
Holdbacks for such year equal $10,000,000, an amount equal to $100,000,000 less
the Borrower Liquidity Amount in effect immediately prior to receipt of the Net
Cash Proceeds of such Asset Disposition or Exchange, with the amount of the
Liquidity Holdback applicable to any Asset Disposition or Exchange to be
certified in writing by a senior officer of the Borrower to the Administrative
Agent at the time a portion of the Net Cash Proceeds of such Asset Disposition
or Exchange is required to be applied to the prepayment of Loans under Section
2.11 hereof.
"Post-Extension Date" means the date immediately following the
Extension Date.
"Revolving Commitment I" means, with respect to any Lender that is a
Revolving Lender I, a Revolving Commitment in the amount equal to the greater of
(i) the aggregate outstanding principal amount of the Revolving Loans of such
Lender at the opening of business on the Post-Extension Date and (ii) if the
outstanding principal amount of all Designated Revolving Loans at the opening of
business on the Post-Extension Date is less than the Benchmark Amount, an amount
equal to the Conversion Percentage of the Revolving Commitment of such Lender at
the opening of business on the Post-Extension Date or, if applicable, the
Revolving Commitment I assigned to such Lender pursuant to Section 9.04, and in
each case as the same may be reduced pursuant to Sections 2.09, 2.11(f) and/or
7.
"Revolving Commitment II" means, with respect to any Lender that is a
Revolving Lender II, a Revolving Commitment in the amount equal to the Revolving
Commitment of such Lender at the opening of business on the Post-Extension Date
(after giving effect to any voluntary reduction thereto to be effected on such
date) less the amount of the Revolving Commitment I of such Lender or, if
applicable, the Revolving Commitment II assigned to such Lender pursuant to
Section 9.04, and in each case as the same may be reduced pursuant to Sections
2.09, 2.11(f) and/or 7.
"Revolving Commitment III" means, with respect to any Lender that is a
Revolving Lender III, a Revolving Commitment in the amount equal to the
Revolving Commitment of such Lender at the opening of business on the
Post-Extension Date (after giving effect to any voluntary reduction thereto to
be effected on such date) less such Lender's RL Percentage of the Benchmark
Amount, or, if applicable, the Revolving Commitment III assigned
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to such Lender pursuant to Section 9.04, in each case as the same may be reduced
pursuant to Sections 2.09, 2.11(f) and/or 7.
"Revolving Commitment IV" means, with respect to any Lender that is a
Revolving Lender IV, a Revolving Commitment in the amount equal to such Lender's
RL Percentage of the Benchmark Amount, or, if applicable, the Revolving
Commitment IV assigned to such Lender pursuant to Section 9.04, in each case as
the same may be reduced pursuant to Sections 2.09, 2.11(f) and/or 7.
"Revolving Lenders I" means (i) those Revolving Lenders in existence
on the Extension Date that are not Consenting Revolving Lenders, with each such
Lender to remain a Revolving Lender I unless it has assigned to another Person
or Persons pursuant to Section 9.04 all of its Revolving Commitment I and
Revolving Loans I and (ii) any Lender which has acquired by assignment pursuant
to Section 9.04 a Revolving Commitment I or any Revolving Loans I.
"Revolving Lenders II" means (i) those Revolving Lenders in existence
on the Extension Date that are not Consenting Revolving Lenders, with any such
Lender to remain a Revolving Lender II unless it has assigned to another Person
or Persons pursuant to Section 9.04 all of its Revolving Commitment II and
Revolving Loans II and (ii) any Lender which has acquired by assignment pursuant
to Section 9.04 a Revolving Commitment II or any Revolving Loans II.
"Revolving Lenders III" means (i) those Revolving Lenders in existence
on the Extension Date that are Consenting Revolving Lenders, with each such
Lender to remain a Revolving Lender III unless it has assigned to another Person
or Persons pursuant to Section 9.04 all of its Revolving Commitment III and
Revolving Loans III and (ii) any Lender which has acquired by assignment
pursuant to Section 9.04 a Revolving Commitment III or any Revolving Loans III.
"Revolving Lenders IV" means (i) those Revolving Lenders in existence
on the Extension Date that are Consenting Revolving Lenders, with each such
Lender to remain a Revolving Lender IV unless it has assigned to another Person
or Persons pursuant to Section 9.04 all of its Revolving Commitment IV and
Revolving Loans IV and (ii) any Lender which has acquired by assignment pursuant
to Section 9.04 a Revolving Commitment IV or any Revolving Loans IV.
"Revolving Loan I" means (x) each Revolving Loan of a Revolving Lender
I that is outstanding at the opening of business on the Post-Extension Date and
(y) each Revolving Loan, if any, thereafter made through the utilization of
Revolving Commitments I.
"Revolving Loan II" means each Revolving Loan, if any, made after the
Post-Extension Date through the utilization of Revolving Commitments II.
"Revolving Loan III" means each Revolving Loan, if any, made after the
Post-Extension Date through the utilization of Revolving Commitments III.
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"Revolving Loan IV" means (x) each Revolving Loan of a Revolving
Lender IV outstanding at the opening of business on the Post-Extension Date and
(y) each Revolving Loan, if any, thereafter made through the utilization of
Revolving Commitments IV.
"Revolving Loan Facility I" means the Facility evidenced by the
Revolving Commitments I.
"Revolving Loan Facility II" means the Facility evidenced by the
Revolving Commitments II.
"Revolving Loan Facility III" means the Facility evidenced by the
Revolving Commitments III.
"Revolving Loan Facility IV" means the Facility evidenced by the
Revolving Commitments IV.
"Revolving Loan Maturity Date I/II" means June 30, 2004.
"Revolving Loan Maturity Date III/IV" means April 1, 2006.
"RL Percentage" means as to any Lender that is a Revolving Lender III
or Revolving Lender IV, the percentage which such Lender's Revolving Commitment
as in effect on the Post-Extension Date constitutes of all Designated Revolving
Commitments on the Post- Extension Date.
"Specified Escrow Amount" means on December 31, 2004, any and all
amounts then in the EP Escrow to the extent attributable to a Designated
Excluded Properties Sale in respect of, or Designated Indebtedness secured by,
any Excluded Property that would have constituted a Designated Property on such
date if such property had not been Disposed of or Utilized.
"Specified NCP" has the meaning provided in Section 2.11(f).
"Term Lender I" means (x) each Lender that holds Term Loans on the
Post-Extension Date that is not a Term Lender II and (y) any Lender which has
acquired by assignment pursuant to Section 9.04 a Term Loan I.
"Term Lender II" means each Consenting IRL Lender so long as such
Lender holds Term Loans II and any Lender which has acquired by assignment
pursuant to Section 9.04 a Term Loan II.
"Term Loan I" means each of the Term Loans (other than Term Loans II)
outstanding at the opening of business on the Post-Extension Date.
"Term Loan II" has the meaning provided in Section 2.01(b).
"Term Loan Facility I" means the Facility evidenced by the Term Loans
I.
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"Term Loan Facility II" means the Facility evidenced by the Term Loans
II.
"Utilized" means at any time an Excluded Property that has been
encumbered by a Lien incurred pursuant to Section 6.03(q).
(B) Section 2.01(a) of the Credit Agreement is amended by (i) changing
the reference therein to "Revolving Loan Maturity Date" to read "Revolving Loan
Maturity Date III/IV (or Revolving Loan Maturity Date I/II in the case of
Revolving Lenders I and Revolving Lenders II)" and (ii) adding three new
sentences before the last sentence of such Section to read:
"Revolving Loans III will not be made at any time if, after giving effect
thereto, the sum of (x) the aggregate outstanding principal amount of
Revolving Loans III plus (y) the LC Obligations at such time would exceed
the aggregate Revolving Commitments III at such time, it being understood
that, as provided in Section 2.02(a) below, Revolving Loans II cannot be
made at a time when Revolving Loans III cannot be made. Revolving Loans may
not be borrowed (x) under Revolving Commitments I at a time when (and after
giving effect to any concurrent Borrowing of Revolving Loans) the aggregate
outstanding principal of Revolving Loans IV is less than the aggregate of
the Revolving Commitments IV or (y) under Revolving Commitments II and/or
Revolving Commitments III at a time when (and after giving effect to any
concurrent Borrowing of Revolving Loans) (x) the aggregate outstanding
principal amount of Revolving Loans I is less than the aggregate of the
Revolving Commitments I at the time or (y) the aggregate outstanding
principal amount of Revolving Loans IV is less than the aggregate Revolving
Commitments IV. Revolving Loans may not be incurred on the Post-Extension
Date."
(C) Section 2.01(b) of the Credit Agreement is amended by (i) deleting
in its entirety the parenthetical in the first sentence and (ii) inserting a new
sentence before the last sentence of such Section to read:
"On the Post-Extension Date, the aggregate principal amount of all
Increasing Rate Term Loans held by each Consenting IRL Lender shall be
converted into term loans hereunder (collectively, the "Term Loans II" and
together with the Term Loans I, the "Term Loans" and, individually, each a
"Term Loan")."
(D) Section 2.02 of the Credit Agreement is amended by changing the
first sentence in paragraph (a) thereof to read:
"(a) (i) Each Revolving Loan I shall be made as part of a Borrowing
consisting of Revolving Loans I made by the Revolving Lenders I ratably in
accordance with their respective Revolving Commitments I, (ii) each
Revolving Loan II and Revolving Loan III shall be made as part of a
Borrowing consisting of Revolving Loans II and Revolving Loans III made by
the Revolving Lenders ratably in accordance with their respective Revolving
Commitments II and Revolving Commitments III, (iii) each Revolving Loan IV
shall be made as part of a Borrowing consisting of Revolving Loans IV made
by the Revolving Lenders IV ratably in accordance with their respective
Revolving Commitments IV, (iv) each Term Loan I shall be made as part of a
Borrowing consisting
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of Term Loans I held ratably by Term Lenders I and (v) each Term Loan II
shall be made as part of a Borrowing consisting of Term Loans II held
ratably by Term Lenders II."
(E) Section 2.04 of the Credit Agreement is amended by (w) deleting in
paragraph (a) thereof the phrase "(I) the aggregate principal amount at any time
outstanding that will not result in"; (x) changing the phrase, "the sum of the
total Revolving Extensions of Credit exceeding the total Revolving Commitments;
provided that" in paragraph (a) thereof to read "the sum of the Adjusted Total
Revolving Extensions of Credit exceeding the Adjusted Total Revolving
Commitment; provided that (i)"; (y) adding at the end of the penultimate
sentence in said paragraph (a) the following:
"and (ii) all Swingline Loans outstanding on the date four Business Days
prior to the Revolving Loan Maturity Date I/II shall become due and payable
on such date and no further Swingline Loans may be incurred until after the
Revolving Loan Maturity Date I/II";
and (z) in paragraph (c) thereof, (i) changing the first reference to "Revolving
Lenders" to read "Revolving Lenders III and, if on or prior to the Revolving
Loan Maturity Date I/II, the Revolving Lenders II"; (ii) inserting the word
"such" prior to the next reference therein to "Revolving Lenders" and the first
reference therein to "Revolving Lender"; and (iii) changing the reference to
"Revolving Lender" in the third, fourth and fifth sentence thereof to read
"Revolving Lender II and Revolving Lender III".
(F) Section 2.05 of the Credit Agreement is amended by (i) changing
the reference to "Revolving Loan Maturity Date" in paragraph (a) thereof to read
"Revolving Loan Maturity Date III/IV"; (ii) adding the word "Adjusted"
immediately prior to the references in paragraph (b) thereof to "Total Revolving
Extensions of Credit" and to "Total Revolving Commitment"; (iii) changing the
reference to "Revolving Loan Maturity Date" in paragraph (c) thereof to read
"Revolving Loan Maturity Date III/IV"; (iv) in paragraph (d) thereof, (x)
changing the first reference therein to "each Revolving Lender" to read "each
Revolving Lender III and, if such issuance is prior to the Revolving Loan
Maturity Date I/II, each Revolving Lender II"; (y) changing the second reference
to "each Revolving Lender" in said paragraph (d) to read "each such Revolving
Lender"; and (z) changing the reference to "Revolving Lender" in the second and
third sentence of said paragraph (d) to read "each Revolving Lender II and
Revolving Lender III"; (v) adding the phrase "(if any)" after each reference to
"Revolving Percentage" in paragraph (e) thereof; and (vi) inserting after the
second reference to "Revolving Lenders" in paragraph (j) thereof the phrase
"with exposure for LC Obligations".
(G) Section 2.08(a) of the Credit Agreement is hereby amended in its
entirety to read:
"(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent (x) for the account of each Term Lender I the
Scheduled Repayments as provided in Section 2.11(h)(i) and (y) for the
account of each Term Lender II the Scheduled Repayments as provided in
Section 2.11(h)(ii); (ii) to the Administrative Agent (x) for the account
of each Revolving Lender I and Revolving Lender II the then unpaid
principal amount of each Revolving Loan I and/or Revolving
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Loan II held by such Lender on the Revolving Loan Maturity Date I/II and
(y) for the account of each Revolving Lender III and Revolving Lender IV,
the then unpaid principal amount of each Revolving Loan III and/or
Revolving Loan IV held by such Lender on the Revolving Loan Maturity Date
III/IV; and (iii) to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earlier of (A) if made prior thereto, the
date four Business Days prior to the Revolving Loan Maturity Date I/II, (B)
the Swingline Expiry Date and (C) the first date after such Swingline Loan
is made that is the 15th or last day of a calendar month and is at least
two Business Days after such Swingline Loan is made; provided that on each
date that a Revolving Loan Borrowing is made the Borrower shall repay all
Swingline Loans then outstanding.
(H) Section 2.09 of the Credit Agreement is amended by (I) changing
all of paragraph (a) thereof beginning with the reference therein to "(i)" and
ending with the reference therein to "(ii)" to read:
"(i) all Revolving Commitments I and Revolving Commitments II shall
terminate on the Revolving Loan Maturity Date I/II, (ii) all Revolving
Commitments III and Revolving Commitments IV shall terminate on the
Revolving Loan Maturity Date III/IV and (iii)";
(II) in paragraph (b) thereof, (x) changing the reference to "and (ii)" to read
", (ii) the Borrower shall not voluntarily reduce or terminate the Revolving
Commitments I or Revolving Commitments IV at any time when the Adjusted Total
Revolving Commitment exceeds zero, (iii) the Borrower shall not voluntarily
reduce or terminate the Revolving Commitments I or Revolving Commitments IV if
after giving effect to any concurrent prepayment of Revolving Loans I or
Revolving Loans IV, as the case may be, in accordance with Section 2.10 the
aggregate principal amount of the Revolving Loans I or Revolving Loans IV, as
the case may be, would exceed the aggregate Revolving Commitments I or aggregate
Revolving Commitments IV, as the case may be, (iv) the Borrower shall not reduce
the Revolving Commitments IV at any time prior to the Revolving Loan Maturity
Date I/II and (v)"; and (y) adding the word "Adjusted" immediately prior to the
references therein to "Total Revolving Commitment" and "Revolving Extensions of
Credit"; (III) changing the last sentence of paragraph (c) in its entirety to
read:
"Each reduction of Revolving Commitments II and Revolving Commitments III
pursuant to the foregoing provisions of this Section 2.09 shall be applied
ratably among the Revolving Lenders II and Revolving Lenders III in
accordance with their respective Revolving Commitment II or Revolving
Commitment III, as the case may be, and each reduction of Revolving
Commitment IV shall be applied ratably among the Revolving Lenders IV in
accordance with their respective Revolving Commitments IV, with reductions
to Revolving Commitments I, which may only be made when the Adjusted Total
Revolving Commitment and the Revolving Commitments IV have been reduced to
zero, to be applied ratably among the Revolving Lenders I in accordance
with their respective Revolving Commitments I.";
and (IV) adding new paragraphs (e) and (f) to read:
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"(e) The Borrower may cause the Revolving Commitments III and/or
Revolving Commitments IV to be increased, effective on the Revolving Loan
Maturity Date I/II, by an aggregate amount up to, but not in excess of, the
aggregate of Revolving Commitments I and Revolving Commitments II
terminating on such date, with such additional Revolving Commitments III
and Revolving Commitments IV to be provided by the Person or Persons
specified by the Borrower to the Administrative Agent in writing, provided
that (i) the Person or Persons providing the additional Revolving
Commitments shall have executed an agreement reasonably satisfactory in
form and substance to the Administrative Agent and the Borrower whereby
such Person becomes a party to this Agreement with a Revolving Commitment
III and/or Revolving Commitment IV as specified therein and (ii) if any
Person so providing an additional Revolving Commitment was not theretofore
a Revolving Lender, the Administrative Agent, the Issuing Bank and the
Swingline Bank shall have consented to it becoming a Revolving Lender (such
consent not to be unreasonably withheld). If any Revolving Commitments III
and/or Revolving Commitments IV are created pursuant to this Section
2.09(e) the Borrower shall incur and repay Revolving Loans, to the extent
necessary (in the opinion of the Administrative Agent), and in such
amounts, that, after giving effect thereto, the outstanding Revolving Loans
III or Revolving Loans IV, as the case may be, (including in each case any
made on the Revolving Loan Maturity Date I/II to repay Revolving Loans I,
Revolving Loans II and/or Increasing Rate Term Loans to the extent
permitted by Section 3.16(a)) will have been made by all Revolving Lenders
III or Revolving Lenders IV, as the case may be, pro rata on the basis of
their respective Revolving Commitments III or Revolving Commitments IV, as
the case may be.
(f) In addition, the Revolving Commitments shall be reduced as
provided in Section 2.11(f). All reductions of Revolving Commitments
provided for in this Section 2.09(f) shall be made ratably among the
Revolving Lenders in accordance with their respective Revolving Commitments
so being reduced."
(I) Section 2.10 of the Credit Agreement is amended by (a) changing
the first reference therein to "Revolving Loans and Term Loans" to read "(i)
Revolving Loans I, (ii) Revolving Loans II and Revolving Loans III together and
(iii) Revolving Loans IV, (iv) Term Loans I and Term Loans II together"; (b)
inserting after the reference therein to "(iii)" the following:
"prepayments pursuant to this Section 2.10 of Term Loans I and Term Loans
II must be made ratably between Term Loans I and Term Loans II, provided
that the actual payment date for each Class of Term Loans may vary so as to
avoid costs under Section 2.16; (iv) no prepayment of Revolving Loans I or
Revolving Loans IV (other than with Excess Proceeds) may be made pursuant
to this Section 2.10 at any time when Revolving Loans II and/or Revolving
Loans III are outstanding (after giving effect to any concurrent prepayment
of such Loans); (v) no prepayment of Revolving Loans IV (other than with
Excess Proceeds) may be made pursuant to this Section 2.10 at any time when
Revolving Loans I are outstanding"
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; and (c) inserting the phrase "due on such Term Loans" after the third
reference to "installments" in the current clause (iv) thereof; and (d) changing
the references to "(iv)" and "(v)" therein to read "(vii)" and "(viii)",
respectively.
(J) Section 2.11 of the Credit Agreement is amended by (i) in
paragraph (a) thereof, (w) changing the first reference to "Revolving Loans" in
each of the first and second sentences thereof to read "Revolving Loans II,
Revolving Loans III", (x) changing the second reference to "Revolving Loans" in
the first sentence thereof to read "Revolving Loans II and Revolving Loans III
(ratably among them)", (y) inserting the word "Adjusted" immediately prior to
each reference in said paragraph to "Total Revolving Commitment" and (z) adding
a new sentence at the end thereof to read "If on any date the aggregate
outstanding principal amount of all Revolving Loans IV (after giving effect to
all other repayments thereof on such date) exceeds the aggregate Revolving
Commitments IV on such date, the Borrower on such date shall repay Revolving
Loans IV in an aggregate equal to such excess"; (ii) changing the phrase "(other
than Permitted Debt Refinancing)" in paragraph (c) thereof to read "(other than
Designated Indebtedness and/or Permitted Debt Refinancing)"; (iii) replacing all
of paragraph (f) thereof beginning with the reference to "(C)" with the
following:
"(C) third, to repay Term Loans, Revolving Loans III and Revolving Loans IV
pro rata (based on the principal amount of the Term Loans then outstanding,
the aggregate Revolving Commitments III and the aggregate Revolving
Commitments IV), provided that (I) (x) so long as any Revolving Commitments
IV are in effect, the maximum amount otherwise payable in respect of
Revolving Loans III pursuant to the foregoing provisions of this clause (C)
will be applied to repay Revolving Loans IV to the extent of the Revolving
Commitments IV then in effect (after giving effect to the reduction to
Revolving Commitments IV pursuant to this clause (C) as a result of the
application of such Net Cash Proceeds determined without giving effect to
clause (I)(x)) and (y) the Revolving Commitments IV shall be reduced in the
maximum amount by which Revolving Loans IV are required to be repaid
pursuant to this Section 2.11(f) (assuming there were no unutilized
Revolving Commitments IV) and (II) the Revolving Commitments III shall only
be reduced in the amount by which Revolving Loans III are repaid pursuant
to this Section 2.11(f) (after giving effect to clause (I) (x) above).
and ; (iv) in paragraph (h) thereof, (w) inserting after the reference therein
to "Section 2.11" the phrase "(i)"; (x) changing the reference therein to "Term
Loans" to read "Term Loans I"; (y) inserting after the reference therein to
"each such repayment" the phrase ", together with each repayment required by
clause (ii) below,"; and (z) adding at the end of such paragraph the following:
"and (ii) on each date set forth below, the Borrower shall be required to
repay that principal amount of Term Loans II, to the extent then
outstanding, as is set forth opposite such date:
Scheduled Repayment Date Amount
------------------------ -------------
June 30, 2003 .5% of Term Loans II
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Scheduled Repayment Date Amount
------------------------ -------------
December 30, 2003 .5% of Term Loans II
June 30, 2004 .5% of Term Loans II
December 30, 2004 .5% of Term Loans II
June 30, 2005 .5% of Term Loans II
December 30, 2005 .5% of Term Loans II
April 1, 2006 Balance"
(K) Section 2.12 of the Credit Agreement is amended by (i) changing
the first reference in clause (b) thereof to "Revolving Commitment" to read
"Revolving Commitment II or a Revolving Commitment III"; (ii) inserting the word
"Adjusted" immediately prior to each reference in clause (b) thereof to "Total
Revolving Commitment"; (iii) renumbering clause (d) as clause (e); and (iv)
inserting a new clause (d) to read:
"(d) The Borrower agrees to pay to the Administrative Agent on the
Revolving Loan Maturity Date III/IV (or if earlier on the earlier of (i)
the date on which the Loans have become due and payable or (ii) the date on
which the Total Revolving Commitments have been terminated and all
Obligations have been repaid) for the account of each Lender a fee equal to
2.00% of the sum of (x) its Revolving Commitments and (y) the aggregate
outstanding principal amount of its Term Loans, in each case as of June 30,
2005."
(L) Section 2.13 of the Credit Agreement is amended by (i) deleting
the reference in clause (d) to "or Swingline Loans"; (ii) changing the reference
in clause (d) to "Total Revolving Commitment" to read "the Revolving Commitment
pursuant to which made and in the case of Swingline Loans, upon termination of
the Total Revolving Commitment"; (iii) renumbering clause (e) as clause (f); and
(iv) adding a new clause (e) to read:
"(e) In addition to the interest otherwise payable on the Loans
pursuant to the foregoing provisions of this Section 2.13, interest ("PIK
Interest") shall accrue on each Term Loan I outstanding on and/or after the
Post-Extension Date until the date such Loan is repaid at the rate of 1.00%
per annum, such interest to be compounded quarterly and to be due and
payable on June 30, 2006 (or if earlier, the date on which the Term Loans I
have become due and payable pursuant to Section 7 hereof)."
(M) Section 3.16(a) of the Credit Agreement is amended by adding at
the end of the second sentence thereof the following:
"provided that Revolving Loans III and/or Revolving Loans IV may be
incurred on the Revolving Loan Maturity Date I/II to repay outstanding
Revolving Loans I, Revolving
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Loans II and/or Increasing Rate Term Loans only if (x) the requirements of
Section 2.01(a) are satisfied and (y) after giving effect to such
incurrence (and any concurrent incurrence of Revolving Loans III to repay
Swingline Loans) the Borrower Liquidity Amount will be at least $50
million."
(N) Section 6.02(f) of the Credit Agreement is amended by deleting
the portion of such clause beginning with "(A)" and ending with "(B)" and
inserting in lieu thereof the following:
"(A) in respect of the Increasing Rate Term Loans outstanding in an
aggregate principal amount not in excess of the aggregate principal amount
thereof on the Post-Extension Date after giving effect to the conversion of
Designated IRL Loans to Term Loans II and/or (B)".
(O) Section 6.08(a) of the Credit Agreement is amended by adding
after the reference therein to "Senior Notes" the phrase ", any Increasing Rate
Term Loans (other than, prior to the Post-Extension Date, Designated IRL Loans
and other than the repayment of Increasing Rate Term Loans at maturity on the
Revolving Loan Maturity Date I/II)".
2. On and as of the Post-Extension Date, all changes and consents
under the Third Amendment and Restatement that were to become effective on, or
required the occurrence of, the Specified Repayment Date (as defined in the
Third Amendment and Restatement) shall be terminated and be of no further force
or effect.
V. Miscellaneous
1. In order to induce the undersigned Lenders to enter into this
Fifth Amendment and Restatement, the Borrower hereby represents and warrants
that (x) no Default or Event of Default exists on the Fifth Amendment and
Restatement Effective Date after giving effect to this Fifth Amendment and
Restatement, (y) all of the representations and warranties contained in the
Credit Agreement shall be true and correct in all material respects as of the
Fifth Amendment and Restatement Effective Date after giving effect to this Fifth
Amendment and Restatement, with the same effect as though such representations
and warranties had been made on and as of the Fifth Amendment and Restatement
Effective Date (unless such representations expressly relate to an earlier date,
in which case they shall be true and correct in all material respects on and as
of such earlier date) and (z) Schedule A attached hereto sets forth a true and
complete list of all existing Indebtedness constituting borrowed money of the
Borrower and its Subsidiaries in excess of $1,000,000 as of April 30, 2003 and
intended to remain outstanding after such date.
2. This Fifth Amendment and Restatement is limited as specified and
shall not constitute a modification, acceptance or waiver of any other provision
of the Credit Agreement or any other Loan Document.
3. This Fifth 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
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constitute one and the same instrument. A complete set of counterparts shall be
lodged with the Borrower and the Administrative Agent.
4. THIS FIFTH 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 Fifth Amendment and Restatement shall become effective on
the date (the "Fifth Amendment and Restatement Effective Date") on which the
Cut-Off Time occurs if each of the following conditions shall have been
satisfied:
(i) the Borrower, Lenders constituting the Required Lenders and (without
duplication) Lenders holding at least 95% of the Revolving Commitments in
effect immediately prior to the Fifth Amendment and Restatement Effective
Date 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 Administrative Agent shall have received a letter (which shall be
reasonably satisfactory to the Administrative Agent) from counsel to the
Borrower describing each Consent Property and the reasons why such Consent
Property cannot be mortgaged to the Collateral Agent for the benefit of the
Lenders;
(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 Fifth Amendment and Restatement Effective Date; and
(iv) the Fourth IRL Amendment shall have become effective in accordance
with its terms.
Unless the Administrative Agent has received actual notice from any Lender that
the conditions contained in clauses (iii) and/or (iv) above have not been
satisfied, upon the satisfaction of the conditions described in clause (i) and
(ii) of the immediately preceding sentence and upon the Administrative Agent's
good faith determination that the other conditions described above have been
met, the Fifth Amendment and Restatement Effective Date shall be deemed to have
occurred, regardless of any subsequent determination that one or more of the
other conditions had not been met (although the occurrence of the Fifth
Amendment and Restatement Effective Date shall not release the Borrower from any
liability for failure to satisfy one or more of the other conditions specified
above).
6. The Borrower shall (x) pay each Lender which executed and
delivered a counterpart to this Fifth Amendment and Restatement on or prior to
8:00 P.M. (New York time) on May 29, 2003 (the "Cut-Off Time"), a non-refundable
cash fee (the "Amendment Fee") in an amount equal to .125% of the sum of the
outstanding principal amount of the Term Loans and of
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the Revolving Commitment of such Lender determined as of the Fifth Amendment and
Restatement Effective Date, and (y) if the Extension Date occurs, each Revolving
Lender which has executed and delivered a counterpart of this Fifth Amendment
and Restatement prior to the Cut-Off Time, a non-refundable cash fee (the
"Extension Fee") in an amount equal to .50% of its Revolving Commitment
(determined on the Post-Extension 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 Fifth Amendment and Restatement
Effective Date (in the case of the Amendment Fee) or the Post-Extension Date (in
the case of the Extension Fee).
7. From and after the Fifth Amendment and Restatement Effective Date
all references in the Credit Agreement and the other Loan Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby. Except as modified hereunder, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents shall continue
in full force and effect.
* * * * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Fifth Amendment and Restatement to be duly executed and
delivered as of the date first above written.
WYNDHAM INTERNATIONAL, INC.,
By____________________________________
Title:
JPMORGAN CHASE BANK
Individually and as Administrative
Agent,
By____________________________________
Title:
X.X.XXXXXX SECURITIES INC.
as Lead Arranger and Book Manager
By____________________________________
Title:
NAME OF LENDER
By_____________________________
[SIGNATURE PAGE TO THE FIFTH
AMENDMENT AND RESTATEMENT TO THE CREDIT AGREEMENT]
