EXHIBIT 10.8
FIRST AMENDMENT
FIRST AMENDMENT, dated as of September 30, 1996 (this "Amendment"),
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to the Credit Agreement, dated as of August 28, 1996 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
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Agreement"), among CHARTWELL LEISURE INC. (the "Company"), CHARTWELL CANADA
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CORP. (the "Canadian Borrower"), the Banks from time to time parties thereto,
THE BANK OF NOVA SCOTIA, as Syndication Agent, and THE CHASE MANHATTAN BANK, as
Administrative Agent.
W I T N E S S E T H:
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WHEREAS, the Company, Chartwell Canada Corp., the Banks, the
Syndication Agent and the Administrative Agent are parties to the Credit
Agreement;
WHEREAS, Company and the Canadian Borrower have requested that the
Banks, the Syndication Agent and the Administrative Agent amend the Credit Agent
in the manner provided for herein in order to, among other things, add Bear
Financial Corp., a Delaware corporation, as an additional Canadian Borrower
under the Credit Agreement and the other Credit Documents; and
WHEREAS, the Banks, the Syndication Agent and the Administrative Agent
are willing to agree to the requested amendment but only on the terms and
conditions provided for herein;
NOW, THEREFORE, in consideration of the premises contained herein, the
parties hereto agree as follows:
I. Defined Terms. Terms defined in the Credit Agreement and used herein
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shall have the meanings given to them in the Credit Agreement.
II. Amendments to Credit Agreement.
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1. Amendment to Preamble. The Preamble of the Credit Agreement is
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hereby amended by deleting "CHARTWELL CANADA CORP. (the 'Canadian
Borrower'): and substituting in lieu thereof "CHARTWELL CANADA CORP. and
BEAR FINANCIAL CORP. (individually and collectively, the 'Canadian
Borrower')".
2. Amendments to Section 6. Section 6.07 of the Credit Agreement is
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hereby by amended by deleting the following text therefrom in its entirety:
"On the Canadian Borrowing Date, Chartwell Lodging Inc. shall
have duly authorized, executed and delivered a Security Agreement
substantially in the form of Exhibit O (as modified, supplemented
or amended from time to time in accordance with the terms thereof
and hereof and together with the security agreements required
under Section 9.14, a "Security Agreement" and collectively, the
"Security Agreement") covering all of such Credit Party's present
and future interest in an Amended and Restated Management
Services and Franchise Development Agreement among Chartwell
Hotels, Inc., Royco Hotels & Resorts Ltd, and the Company, in
each case together with."
and substituting in lieu thereof, the following next:
"On the Canadian Borrowing Date, Chartwell Lodging Inc. shall
have duly authorixed, executed and delivered a Security Agreement
substantially in the form of Exhibit O (as modified, supplemented
or amended from time to time in accordance with the terms thereof
and hereof and together with the security agreements required
under Section 9.14, a "Security Agreement" and collectively, the
"Security Agreement") covering all of such Credit Party's present
and future interest in an Amended and Restated Management
Services and Franchise Development Agreement among Chartwell
Hotels, Inc., Royco Hotels & Resorts Ltd, and the Company, in
each case together with."
3. Amendments to Section 12. Section 12.01 of the Credit
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Agreement is hereby amended by deleting therefrom the definition of
"Canadian Borrower" appearing therin and substituting in lieu thereof
the following definition in the proper alphabetical order:
"Canadian Borrower" shall mean the collective reference to
Chartwell Canada Corp., a Delaware corporation, and Bear
Financial Corp., a Delaware corporation."
III. General. For all purposes of the Credit Agreement and all Credit
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Documents, as of the Amendment Effective Date, (a) Bear Financial Corp. shall be
a party to the Credit Agreement, as a Canadian Borrower, (b) each reference to
the Canadian Borrower will be deemed to be a reference to each of Chartwell
Canada Corp. and Bear Financial Corp. and (c) any obligation of the Canadian
Borrower under the Credit Agreement and the other Credit Documents shall be a
joint and several obligation of each of Chartwell Canada Corp. and Bear
Financial Corp.
IV. Condition to Effectiveness. This Amendment shall become effective
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on the date (the "Amendment Effective Date") on which all of the following
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conditions precedent have been satisfied or waived:
1. The Company, Chartwell Canada Corp., Bear Financial Corp.,
the Banks the Syndication Agent and the Administrative Agent shall
have executed and delivered to the Administrative Agent this
Amendment.
2. The Administrative Agent shall have received each of the
following (together with this Amendment, the "Amendment Documents"):
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(a) an acknowledgment and consent, substantially in the
form of Exhibit A hereto, from each Credit Party party to any
Security Document, the Company Guaranty and any Guarantee
acknowledging and consenting to the execution, delivery and
performance of this Amendment and the transactions contemplated
hereby and confirming that the security interests and guaranties
granted and created therein, in each case, executed and delivered
by a duly authorized officer of such party, and
(b) a duly executed Revolving C$ Note date August 28, 1996
from Bear Financial Corp. for the account of each Bank
substantially in the form of Exhibit B-3 to the Credit Agreement.
3. Each of the Company, Chartwell Canada Corp. and Bear
Financial Corp. shall have executed and delivered such documents and
taken such other actions as may have been requested by or on behalf of
the Administrative Agent, and in the form or manner as may have been
so requested.
4. The Administrative Agent shall have received a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of each of Chartwell Canada Corp. and
Bear Financial Corp. authorizing the execution, delivery and
performance of the Amendment Documents to which it is a party and any
borrowings, and the creation and perfection of any security interest
and liens and the execution and delivery of any guarantees,
contemplated by such Amendment Documents, certified by the Secretary
or an Assistant Secretary of such party thereto as of the Amendment
Effective Date, which certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate. Within a reasonable time
after the Amendment Effective Date, the Company shall deliver to the
Administrative Agent a copy of its resolutions, inform and substance
satisfactory to the Administrative Agent, of its Board of Directors
ratifying the execution, delivery and performance of the Amendment
Documents to which it is a party and any borrowings, and the creation
and perfection of any security interest and liens and the execution
and delivery of any guarantees, contemplated by such Amendment
Documents, certified by the Secretary or an Assistant Secretary of the
Company as of the date such resolutions are delivered to the
Administrative Agent,
which certificate shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded as of the date of such
certificate.
5. The Administrative Agent shall have received a certificate of the
Secretary or Assistant Secretary of each of Chartwell Canada Corp. and Bear
Financial Corp., dated the Amendment Effective Date, as to the incumbency
and signature of each of the officers signing the Amendment Documents to
which such party is a party, and any other instrument or document delivered
by such party thereto in connection herewith, together with evidence of the
incumbency of such Secretary or Assistant Secretary.
6. The Administrative Agent shall have received, with a counterpart
for each Bank, an executed legal opinion of Battle Xxxxxx LLP, special
counsel to Chartwell Canada Corp. and Bear Financial Corp., which opinion
shall over the matters addressed in Exhibit M-2 to the Credit Agreement
with respect to Chartwell Canada Corp. and Bear Financial Corp. Such legal
opinion shall also cover such matters incident to this Amendment and the
transactions contemplated hereby as may be requested by the Administrative
Agent.
7. Chartwell Loding Inc. shall have pledged the shares of Chartwell
Canada Hospitality Corp., a wholly owed Subsidiary of Chartwell Loding
Inc., to the Administrative Agent, pursuant to a supplement to the Pledge
Agreement in form and substance satisfactory to the Administrative Agent.
8. Chartwell Canada Hospitality Corp. shall have executed and
delivered a copy of the Subsidiaries Guaranty in substantially the form of
Exhibit G-2 to the Credit Agreement.
V. General.
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1. Representation and Warranties. The representations and warranties
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made by the Credit Parties in the Credit Documents are true and correct in
all material respects on and as of the Amendment Effective Date, before and
after giving effect to the effectiveness of this Amendment, as if made on
and as of the Amendment Effective Date, except where such representations
and warranties relate to an earlier date in which case such representations
and warranties shall be true and correct in all material respects as of
such earlier date and except to the extent and only to the extent waived
herein; provided that all references to the Credit Agreement in such
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representations and warranties shall be and are deemed to mean this
Amendment as well as the Credit Agreement as amended hereby.
2. Payment of Expenses. The Company agrees to pay or reimburse the
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Administrative Agent for all of its out-of-pocket costs and reasonable
expenses incurred in connection with the Amendment Documents, any other
documents prepared in connection herewith and the transactions contemplated
hereby, including, without
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limitation, the reasonable fees and disbursements of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel to the Administrative Agent.
3. No Other Amendments; Confirmation. Except as expressly amended,
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modified and supplemented hereby, the provisions of the Credit Agreement
and the Notes are and shall remain in full force and effect.
4. Counterparts. This Amendment may be executed in any number
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counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
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AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
CHARTWELL LEISURE INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
CHARTWELL CANADA CORP.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
BEAR FINANCIAL CORP.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
THE BANK OF NOVA SCOTIA,
Individually and as Syndication Agent
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: Unit Head
BANQUE PARIBAS
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Group Vice President
CIBC, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Associate Director
MELLON BANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
NATIONSBANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
Individually and as Administrative agent
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
