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EXHIBIT 10.9
FIRST AMENDMENT
TO
REVOLVING CREDIT AND
GUARANTY AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AND GUARANTY AGREEMENT (the
"AMENDMENT") is made as of the __30th___ day of November, 1998 by and among
XXXXXXXX HOSPITALITY LIMITED PARTNERSHIP ("HHLP"), a limited partnership
organized under the laws of the Commonwealth of Virginia, XXXXXXXX HOSPITALITY
TRUST, INC. ("HH TRUST"), a corporation organized under the laws of the
Commonwealth of Virginia, XXXXXXXX HOSPITALITY REIT TRUST ("HH REIT"), a real
estate investment trust organized under the laws of the State of Maryland
(HHLP, HH Trust, and HH REIT, collectively, the "BORROWER"), SOLOMONS BEACON
INN LIMITED PARTNERSHIP ("SOLOMONS" or "GUARANTOR"), a limited partnership
organized under the laws of the State of Maryland, each Borrower and Guarantor
having its principal place of business at 00000 Xxx Xxxxxxxx Xxxx, Xxxxxx
Xxxxxx, Xxxxxxxx 00000 and BANKBOSTON, N.A. (the "INITIAL LENDER"), a national
banking association, having its principal executive offices at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, SOVEREIGN BANK (the "NEW LENDER"), a
federal savings bank, having an office at 00 Xxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxxxxx 00000, and the other lending institutions that will become
parties to the Credit Agreement (as defined below), and BANKBOSTON, N.A., as
agent for itself and such other lending institutions.
PRELIMINARY STATEMENTS
A. The Borrower, the Guarantor and the Initial Lender entered into a
certain Revolving Credit and Guaranty Agreement dated as of August 18, 1998
(the "ORIGINAL CREDIT AGREEMENT"). All capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings ascribed to
such terms in the Original Credit Agreement.
B. Pursuant to the terms of the Original Credit Agreement, the Initial
Lender agreed to provide the Borrower with a revolving credit facility and
letters of credit in an aggregate amount of up to $35,000,000.00. The parties
hereto desire to amend the Original Credit Agreement in order to, among other
things, (i) acknowledge the assignment of a portion of the Initial Lender's
Commitment to the New Lender pursuant to an Assignment and Acceptance dated of
even date herewith and (ii) specify the new Commitments of the Lenders and to
adjust the respective Commitment Percentages.
NOW, THEREFORE, in consideration of the foregoing Preliminary Statements
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
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AGREEMENTS
1. LETTERS OF CREDIT.
(a) Section 4.6(c). Notwithstanding anything in Section 4.6(c) of
the Original Credit Agreement to the contrary, the Agent shall not instruct the
Lenders to make Base Rate Loans under Section 4.6(c) unless (i) an Event of
Default has occurred and the Agent has declared all amounts owing with respect
to the Credit Agreement, the Notes and the other Loan Documents immediately due
and payable or (ii) a drawing has occurred under one or more Letters of Credit.
If there is a drawing under a Letter of Credit prior to acceleration, the Agent
shall not instruct the Lenders to make such Base Rate Loans in an aggregate
amount greater than the Letter of Credit drawing. Upon acceleration, the Agent
may instruct the Lenders to make such Base Rate Loans in the entire aggregate
amount of the Borrower's reimbursements obligations for the Letters of Credit
regardless of whether one or more Letters of Credit remains undrawn.
(b) Section 4.7(a). After the first sentence of Section 4.7(a), the
remainder of Section 4.7(a) is deleted in its entirety.
2. CONSENTS, AMENDMENTS, WAIVERS, ETC. Section 29, Consents,
Amendments, Waivers, Etc., of the Original Credit Agreement is deleted in its
entirety and the following is substituted in its place.
29. CONSENTS, AMENDMENTS, WAIVERS, ETC.
(a) Any consent or approval required or permitted by this Agreement
to be given by all of the Lenders may be given with the written consent of
the Majority Lenders except as provided in this Section 29. The
performance or observance by the Borrower or any of its Subsidiaries of
any terms of this Agreement, the other Loan Documents or such other
instrument, or the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent
of the Majority Lenders. Any term of this Agreement, the other Loan
Documents or any other instrument related hereto or mentioned herein may
be amended with, but only with, the written consent of the Borrower and
the written consent of the Majority Lenders.
(b) Notwithstanding the foregoing,
(i) the rate of interest on and the term of the Notes, the
amount of the Commitments of the Lenders, and the amount of commitment fee
hereunder may not be changed without the written consent of the Borrower
and the written consent of each Lender affected thereby;
(ii) the definition of Majority Lenders may not be amended
without the written consent of all of the Lenders;
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(iii) any action that has the effect of (A) extending the
date of any amortization payment of any Loan or Note, (B) extending the
time of payment of interest or fees thereon, or (C) otherwise postponing
or forgiving any indebtedness thereunder may not be taken without the
written consent of all of the Lenders;
(iv) any material portion of the Collateral other than in
accordance with the express provisions of the Loan Documents may not be
released or discharged without the written consent of all of the Lenders;
(v) any provision of this Section 29 may not be amended,
modified or waived without the written consent of all of the Lenders;
(vi) any of the financial covenants set forth in Section 11 may
not be amended without the written consent of all of the Lenders;
(vii) any guaranty of the Obligations or indemnifications
provided in the Loan Documents may not be released or waived without the
written consent of all of the Lenders;
(viii) in the definition of Adjusted Appraised Value the
phrase "all of the Lenders" shall not be deemed to mean Majority Lenders;
and
(ix) the amount of the Agent's fee payable for the Agent's
account and Section 13 may not be amended without the written consent of
the Agent.
(c) The Borrower hereby agrees that any of items (b)(ii) through
(ix) may be amended at any time by the Lenders without the consent or
approval of, or notice to, the Borrower.
(d) No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon. No course of dealing or
delay or omission on the part of the Agent or any Lender in exercising any
right shall operate as a waiver thereof or otherwise be prejudicial
thereto. No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other
circumstances.
(e) The Lenders agree to consult in good faith and endeavor to reach
agreement on any matter requiring the consent of the Majority Lenders.
3. Except as expressly modified hereby, the Original Credit Agreement is
and remains unmodified and in full force and effect and is hereby ratified and
confirmed. All references in the Loan Documents to the "Credit Agreement"
shall be deemed to refer to the Original Credit Agreement as amended by this
Amendment.
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4. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Amendment by signing any such counterpart. This
Amendment shall be construed in accordance with the internal laws (and not the
law of conflicts) of the Commonwealth of Massachusetts, but giving effect to
federal laws applicable to national banks.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
WITNESS/ATTEST: XXXXXXXX HOSPITALITY LIMITED
PARTNERSHIP,
By: Xxxxxxxx Hospitality REIT Trust,
general partner
/s/Xxxxxxx X. Xxxxxx By:/s/ Xxxxx X. Xxxxxxxx, Xx. (SEAL)
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Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President
XXXXXXXX HOSPITALITY TRUST, INC.
/s/Xxxxxxx X. Xxxxxx By:/s/ Xxxxx X. Xxxxxxxx, Xx. (SEAL)
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Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President
XXXXXXXX HOSPITALITY REIT TRUST
/s/Xxxxxxx X. Xxxxxx By:/s/ Xxxxx X. Xxxxxxxx, Xx. (SEAL)
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Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President
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SOLOMONS BEACON INN LIMITED
PARTNERSHIP
By: Xxxxxxxx Hospitality Limited Partnership,
general partner
By: Xxxxxxxx Hospitality REIT Trust,
general partner
/s/Xxxxxxx X Xxxxxx By:/s/ Xxxxx X. Xxxxxxxx, Xx. (SEAL)
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Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President
BANKBOSTON, N.A., as Agent
By:/s/ Xxxxxxxx X. Xxxx (SEAL)
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Name: Xxxxxxxx X. Xxxx
Title: Director
BANKBOSTON, N.A., as Initial Lender
By:/s/ Xxxxxxxx X. Xxxx (SEAL)
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Name: Xxxxxxxx X. Xxxx
Title: Director
Commitment: $25,000,000.00
Commitment Percentage: 71.4285714286%
SOVEREIGN BANK, as New Lender
By: :/s/ Xxxxxx X. Xxxxxx (SEAL)
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Name: Xxxxxx Xxxxxx
Title: Senior VP
Commitment: $10,000,000.00
Commitment Percentage: 28.5714285714%
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