Exhibit 10.18
AMENDMENT AND RESTATEMENT
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AMENDMENT AND RESTATEMENT (this "Amendment and Restatement"), dated as
of September 25, 2000, among WYNDHAM INTERNATIONAL, INC., a Delaware corporation
(the "Borrower"), the Lenders from time to time party to the Increasing Rate
Note Purchase and Loan Agreement referred to below (the "Lenders"), Chase
Securities Inc. ("CSI"), as Lead Arranger and Book Manager, Bear Xxxxxxx
Corporate Lending Inc., as Co-Arranger and Syndication Agent, Bankers Trust
Company, as Syndication Agent and THE CHASE MANHATTAN BANK, as Administrative
Agent (the "Administrative Agent"). All capitalized terms used herein and not
otherwise defined shall have the respective meanings provided such terms in the
Increasing Rate Note Purchase and Loan Agreement referred to below.
WITNESSETH:
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WHEREAS, the Borrower, the Lenders, the Administrative Agent, the Lead
Arranger and Book Manager, the Co-Arranger and Syndication Agent and the
Syndication Agent have entered into an Increasing Rate Note Purchase and Loan
Agreement, dated as of June 30, 1999 (as amended, modified or supplemented to,
but not including, the date hereof, the "Increasing Rate Note Purchase and Loan
Agreement");
WHEREAS, the parties hereto wish to amend the Increasing Rate Note
Purchase and Loan Agreement as herein provided; and
WHEREAS, subject to the terms and conditions of this Amendment and
Restatement, the parties hereto agree as follows:
1. The definitions of "Allocation Percentage," "EBITDA," "Equity
Ownership Interest," "Core Assets," "Indebtedness," "Joint Venture," "New
Hotel," "New Hotel Indebtedness," "Reinvestment Deferred Amount," "Reinvestment
Notice," Reinvestment Prepayment Amount," "Reinvestment Prepayment Date,"
"Responsible Officer," "Subsidiary," "Total Adjusted EBITDA" and "Total Cash
Interest Expense" contained in Section 1 of the Increasing Rate Note Purchase
and Loan Agreement are hereby amended to read in their entirety as follows:
"Allocation Percentage" means (i) with respect to the Borrower or any
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Wholly-Owned Subsidiary of any Borrower, 100% and (ii) for any other
Person, the percentage that the Equity Ownership Interest of such Person
held directly or indirectly by the Borrower represents of the entire Equity
Ownership Interest of such Person; provided, however, that for purposes of
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the calculation of compliance with the Total Leverage Ratio, Senior Secured
Leverage Ratio or Interest Coverage Ratio, the Allocation Percentage with
respect to the Total Indebtedness or Total Cash Interest Expense of Joint
Ventures created or acquired after the First Amendment and Restatement
Effective Date
shall be zero (so long as neither the Borrower nor any of its Subsidiaries
makes any Investment in any such Joint Venture other than (a) the initial
Investment in such Joint Venture, (b) any Investment in a Joint Venture
after giving effect to which the Borrower's Equity Ownership Interest in
such Joint Venture (direct and indirect) represents 20% or less of the
entire Equity Ownership Interest of such Joint Venture and (c) Investments
in a Joint Venture made pro rata with the other owners of such Joint
Venture the sole purpose of which is to fund Capital Expenditures and
operating maintenance expenses of such Joint Venture).
"Core Assets" means Hotels (or Equity Ownership Interests in Persons
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owning such Hotels) branded as Wyndham Hotels, Wyndham Resorts, Wyndham
Grand Heritage Hotels, Wyndham Luxury Resorts, Summerfield Hotels or Hotels
which will be branded as such within one year after acquisition thereof (so
long as such Hotels are so branded within such time period); provided, that
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notwithstanding anything to the contrary, the Hotels described in Schedule
II and Unrestricted Assets shall not be included in this definition of Core
Assets.
"EBITDA" means for any Person for any period, the net income of such
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Person for such period, plus (a) the sum of the following amounts of such
Person for such period determined in conformity with GAAP to the extent
included in the determination of such net income: (i) depreciation expense,
(ii) amortization expense and all other non-cash expenses and charges,
(iii) interest expense, (iv) income tax expense, (v) extraordinary losses
(and other losses on sales or other dispositions of assets not otherwise
included in extraordinary losses determined in conformity with GAAP), (vi)
all minority interests, including minority interests attributable to the OP
Units and (vii) commencing with the first Fiscal Quarter in 1999, Non-
Recurring Identified Charges, plus (b) cash Dividends actually received by
the Borrower or any Subsidiary of the Borrower (other than Unrestricted
Subsidiaries) from any Unrestricted Subsidiary, less (c) extraordinary
gains of such Person determined in conformity with GAAP to the extent
included in the determination of such net income (and other gains on sales
or other dispositions of assets not otherwise included in extraordinary
gains determined in conformity with GAAP) and equity earnings attributable
to all minority interests, including equity earnings attributable to
minority interests in the OP Units.
"Equity Ownership Interest" means any and all shares, interests,
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participations or other equivalents (however designated) of capital stock
of a corporation, any and all equivalent ownership interests in a Person
(other than a corporation), including partnership interest and limited
liability company membership interest, and any and all warrants, rights or
options to purchase any of the foregoing (excluding Buy/Sell Arrangements
so long as the obligations to purchase the interests in respect thereof are
contingent); provided, that for purposes of the definitions of "Allocation
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Percentage" and "Subsidiary" only, preferred or similar equity or ownership
interests in a Person shall not constitute Equity Ownership Interests to
the extent such interests (A) do not have voting power with respect to such
Person (other than voting power obtained because of an event of default of
a Joint Venture formed in connection with a Permitted Portfolio
2
Transaction), (B) whether by law, contract or otherwise, do not permit the
creditors of such Person to have recourse against the holders of such
interests with respect to the obligations and liabilities of such Person,
(C) provide for redemption either (i) at the option of the holder, whether
contingent or otherwise, (ii) at the option of the issuer, whether
contingent or otherwise, or (iii) upon the occurrence of a certain event or
condition (including, without limitation, the passage of time) and (D) are
not exchangeable for or convertible into other equity interests except
those which also satisfy the criteria set forth in clauses (A), (B) and (C)
above.
"Indebtedness" means as to any Person, without duplication, (i) all
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indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of any asset
(including Forward Purchase Obligations but excluding Contingent Purchase
Obligations) or services; (ii) the maximum amount available to be drawn
under all letters of credit issued for the account of such Person and all
unpaid drawings in respect of such letters of credit, (iii) all
Indebtedness of the types described in clause (i), (ii), (iv), (v), (vi),
(vii) or (viii) of this definition secured by any Lien on any asset owned
by such Person, whether or not such Indebtedness has been assumed by such
Person (it being understood and agreed that (x) the amount of such
Indebtedness under this clause (iii) shall be deemed to be the lesser of
the fair market value (as determined in the reasonable judgment of the
Borrower) of such asset and the principal amount of such Indebtedness and
(y) any Indebtedness of a Joint venture created or acquired in connection
with a Permitted Portfolio Transaction, whose equity or other ownership
interests are pledged by the Borrower or any of its Subsidiaries, shall not
be included as Indebtedness under this clause (iii) so long as such
Indebtedness is not recourse to the Borrower or any of its Subsidiaries),
(iv) Capital Lease Obligations, (v) all obligations of such person to pay a
specified purchase price for goods or services, whether or not delivered or
accepted, i.e., take-or-pay and similar obligations, (vi) all Guarantee
---
Obligations of such Person, (vii) solely for purposes of Sections 6.03 and
7.04, all net exposure of Derivative Obligations, including obligations
under any Interest Rate Protection Agreement, Other Hedging Agreements or
under any similar type of agreement or arrangement calculated in accordance
with GAAP and (viii) Net Rental Payments; provided, that Indebtedness shall
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not include (a) trade payables incurred in the ordinary course of business,
(b) except to the extent covered by clause (viii) above, operating lease
obligations (including, without limitation, the lessee's obligations under
(i) the Existing Operating Leases and the Permitted Sale/Leaseback
Transactions and (ii) any other operating lease pursuant to which the
Borrower, or any of its Subsidiaries or Joint Ventures, as lessee, leases
all or any portion of a Hotel from the holder of an ownership or leasehold
interest in such Hotel, as lessor), (c) short term notes evidencing xxxxxxx
money deposits until delivered to the payee and (d) at the time of
determination of outstanding Indebtedness at any time, the aggregate amount
of Forward Purchase Obligations not in excess of $400,000,000 then
outstanding.
"Joint Venture" means with respect to any Person, at any date, any
-------------
other Person in whom such Person directly or indirectly holds an
Investment, and whose financial results would not be consolidated under
GAAP with the financial results of such Person on the
3
consolidated financial statements of such Person, if such statements were
prepared as of such date; provided that (a) any Joint Venture of a Person
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which is an Unrestricted Subsidiary shall not be treated as a Joint Venture
hereunder for so long as such Person is an Unrestricted Subsidiary and (b)
no Person shall be considered a Joint Venture solely because such Person is
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characterized as a partnership for tax purposes.
"New Hotel" means any Hotel owned by the Borrower, its Subsidiaries or
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Joint Ventures which (i) is being or has been newly constructed, or
substantially refurbished or rebuilt (so long as any such Hotel is or was
substantially closed while being refurbished or rebuilt) or (ii) has been
acquired by the Borrower or any of its Subsidiaries and will be converted
to a Core Asset; provided that any New Hotel shall cease to be treated as a
New Hotel from and after the earlier of (x) the first day of the Fiscal
Quarter occurring after 18 months from the date (a) such New Hotel opened
or re-opened for business (in the case of clause (i) above) or (b) the
conversion process begins (in the case of clause (ii) above) and (y) the
Fiscal Quarter in which the ratio of Total Adjusted EBITDA to Total Cash
Interest Expense attributable to such New Hotel equals or exceeds the
Interest Coverage Ratio required to be exceeded by the Borrower under
Section 6.01(c) for the most recent Fiscal Quarter.
"New Hotel Indebtedness" means, with respect to any New Hotel, the sum
----------------------
of (a) all Indebtedness either secured by such New Hotel or incurred to
finance the construction, acquisition, refurbishment, conversion to a Core
Asset or rebuilding of such New Hotel and (b) all other cash outlays in
respect of the construction, acquisition, refurbishment, conversion to a
Core Assets or rebuilding of such New Hotel; provided, that the interest
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rate associated with any amounts under this clause (b) shall be deemed to
be the interest rate which would have been applicable to Revolving Loans
which are Eurodollar Loans having an Interest Period of three months
determined on the first day of the then most recently ended Fiscal Quarter.
"Reinvestment Deferred Amount" means with respect to any Reinvestment
----------------------------
Event, the aggregate Net Cash Proceeds received by the Borrower or any of
its Subsidiaries in connection therewith that (i) if a Reinvestment Notice
as described in clause (i) of the definition thereof has been given, are
not applied pursuant to Section 2.11 as a result of the delivery of a
Reinvestment Notice, and (ii) if a Reinvestment Notice as described in
clause (ii) of the definition thereof has been given, are intended to be
applied pursuant to Section 2.11(d)(i) as a result of the delivery of a
Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a Responsible
-------------------
Officer stating that (i) no Event of Default has occurred and is continuing
and that the Borrower (directly or indirectly through a Subsidiary or a
Joint Venture) intends and expects to use all or a specified portion of the
Net Cash Proceeds of a Reinvestment Event to acquire assets useful in its
business, (ii) the Borrower intends to use all or a specified portion of
the Net Cash Proceeds of a Reinvestment Event to repay outstanding
Indebtedness in accordance with the priorities set forth in Section
2.09(c), and/or (iii) with respect to any Exchange described in Section
6.05(c)(iii), after repayment of any Indebtedness (other
4
than Indebtedness of the Lenders pursuant to this Agreement) which is
secured by any of the respective assets which were the subject of such
Exchange, including any premium, make-whole or breakage amount related
thereto, the Net Cash Proceeds thereof will be zero; provided that any
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Reinvestment Notice stating the intention described in clause (i) above may
be rescinded at any time prior to the Reinvestment Prepayment Date if it is
replaced with a Reinvestment Notice stating the intention described in
clause (ii) above.
"Reinvestment Prepayment Amount" means with respect to any
------------------------------
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less
any amount expended or irrevocably committed pursuant to a binding
agreement, prior to the relevant Reinvestment Prepayment Date, to acquire
assets useful in the Borrower's business, provided that such acquisition
made with the Net Cash Proceeds of Dispositions of Core Assets shall be
made in Hotels constituting Core Assets or to acquire the Equity Ownership
Interest of a Subsidiary which owns a Hotel or Hotels constituting Core
Assets.
"Reinvestment Prepayment Date" means with respect to any Reinvestment
----------------------------
Event, (i) if a Reinvestment Notice as described in clause (i) of the
definition thereof has been given, the date occurring twelve months after
such Reinvestment Event (plus an additional six months in the case of an
Asset Disposition or an Exchange of Non-Core Assets for Net Cash Proceeds
of $50,000,000 or greater), and (ii) if a Reinvestment Notice as described
in clause (ii) of the definition thereof has been given, the date occurring
five Business Days after the later of (x) the date of such Reinvestment
Event, and (y) the date on which such Reinvestment Notice as described in
clause (ii) of the definition there of was given.
"Responsible Officer" means the chief executive officer, president,
-------------------
chief financial officer or treasurer of the Borrower, but in any event,
with respect to financial matters, the chief financial officer, president
or the treasurer of the Borrower.
"Subsidiary" means as to any person, (i) any corporation more than 50%
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of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or
one or more Subsidiaries of such person and (ii) any partnership, limited
liability company, association, joint venture or other entity in which such
Person and/or one or more Subsidiaries of such Person has more than a 50%
Equity Ownership Interest at the time. Notwithstanding the foregoing, no
Unrestricted Subsidiary shall be considered a Subsidiary of the Borrower or
its Subsidiaries for purposes of this Agreement.
"Total Adjusted EBITDA" means, for any period without duplication, (i)
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the product of (a) EBITDA of the Borrower and its Subsidiaries and Joint
Ventures all on a combined basis in accordance with GAAP for such period
(b) multiplied, in the case of each such Person, by the Allocation
Percentage applicable to such Person, plus (ii) the
5
amount of Approved Procurement Savings set forth on Schedule I for the Test
Period ended on the date set forth thereon; provided that for the purposes
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of the calculation of compliance with the Total Leverage Ratio, Senior
Secured Leverage Ratio and Interest Coverage Ratio, (x) EBITDA of the
Borrower and its Subsidiaries in clause (i)(a) above for the Test Period
ending September 30, 2000 shall also include the difference (whether
negative or positive) between (I) any selling, general and administrative
expenses for such Test Period and (II) any selling, general and
administrative expenses incurred during the last three Fiscal Quarters of
such Test Period multiplied by 4/3, in each case as such selling, general
and administrative expenses are determined in accordance with GAAP and (y)
EBITDA of Joint Ventures created or acquired after the First Amendment and
Restatement Effective Date included in clause (i)(a) above shall be reduced
(but not to an amount less than zero) by the Allocation Percentage of any
permanent principal payment of Indebtedness and payments of cash interest
made during the period for which EBITDA was calculated; provided further
that for the purposes of the calculation of the Interest Coverage Ratio,
EBITDA of Joint Ventures created or acquired after the First Amendment and
Restatement Effective Date included in clause (i)(a) above shall be reduced
by the Allocation Percentage of cash interest income received by such
Person during the period of calculation thereof.
"Total Cash Interest Expense" means the sum of the total cash interest
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expense in respect of Total Indebtedness for such period determined in
conformity with GAAP (excluding interest capitalized in accordance with
GAAP, amortization of deferred financing costs and other non-cash charges
and expenses) minus cash interest income; provided there shall be excluded
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from Total Cash Interest Expense the cash interest expense (not to exceed
$20 million for any applicable period of calculation) attributable to New
Hotel Indebtedness.
2. Section 1 of the Increasing Rate Note Purchase and Loan Agreement
is hereby further amended by inserting therein the following new defined terms
in appropriate alphabetical order:
"Cash Consideration" means, with respect to any Exchange or Asset
------------------
Disposition, cash, Cash Equivalents, the assumption or retirement of
Indebtedness with respect to the asset or property subject to such Exchange
or Asset Disposition, or any combination of the foregoing.
"Designated Joint Venture Assets" means any assets, property or Equity
-------------------------------
Ownership Interest purchased or acquired by the Borrower or any of its
Subsidiaries and designated as "Designated Joint Venture Assets" by the
Borrower by providing a Notice of Designation to the Administrative Agent
at the time of the purchase or acquisition stating the Borrower (i) intends
to convey, sell, convert or otherwise transfer such asset, property or
Equity Ownership Interest to a Joint Venture within six months of such
purchase or acquisition and (ii) the estimated percentage Equity Ownership
Interest the Borrower will hold directly or indirectly in the Joint Venture
after giving effect to such
6
conveyance, sale, conversion or transfer of such assets, property or Equity
Ownership Interest to such Joint Venture.
"Developmental Lease Property" means any property consisting of land
----------------------------
and improvements thereon in the Hospitality/Leisure Related Businesses
owned and developed by a Person other than the Borrower or any of its
Subsidiaries or Joint Ventures for use by the Borrower and/or its
Subsidiaries.
"Developmental Lease Subsidiary" means a Subsidiary of the Borrower
------------------------------
(created on or after the First Amendment and Restatement Effective Date)
which is not a Subsidiary Guarantor and whose assets shall consist solely
of leasehold interests and personal property in connection with the
operation of such leasehold interests.
"Developmental Lease Transaction" means any transaction in which a
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Developmental Lease Subsidiary, as a lessee, enters into a lease agreement
to manage and/or operate a Developmental Lease Property.
"Existing Operating Leases" means the operating leases set forth on
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Schedule A attached to the First Amendment and Restatement.
"First Amendment and Restatement" means the Amendment and Restatement
-------------------------------
to this Agreement, dated as of September 25, 2000.
"First Amendment and Restatement Effective Date" means the First
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Amendment and Restatement Effective Date as defined in the First Amendment
and Restatement.
"Net Rental Payments" means the difference between (A) Rental Payments
-------------------
and (B) any cash deposits or interest reserve made (or letter of credit
support provided or caused to be provided) by the Borrower or any of its
Subsidiaries, in each case in connection with any lease agreement entered
into with respect to any Specified Developmental Lease Transactions;
provided that in no event shall Net Rental Payments in connection with any
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lease agreement entered into in connection with any Specified Developmental
Lease Transaction be less than, on any date, the scheduled payments to be
made by the Borrower and its Subsidiaries in the one year period following
such date under such lease agreement.
"Notice of Designation" shall mean a notice duly executed by a
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Responsible Officer of the Borrower listing the requirements set forth in
the definition of Designated Joint Venture Assets.
"Permitted Mezzanine Investment Entity" shall mean any Person (other
-------------------------------------
than any Unrestricted Subsidiary) in which the Borrower or any of its
Subsidiaries makes an Investment in the form of a loan, so long as the
Borrower or its Subsidiary is (or will be immediately after the making of
such Investment) party to a management agreement or franchise agreement
with respect to an asset owned by such entity on market terms as reasonably
determined by the Borrower.
7
"Permitted Portfolio Transaction" means a transaction or series of
-------------------------------
related transactions between the Borrower and/or its Subsidiaries, on the
one hand, and one other Person and/or any affiliates or group of parties
related to such Person, on the other hand, designated in writing by the
Borrower to the Administrative Agent as the "Permitted Portfolio
Transaction," in connection with any Asset Dispositions, contributions by
the Borrower or any of its Subsidiaries to Joint Ventures of the Borrower
or any of its Subsidiaries (whether existing or created as a result of such
contributions), or Exchanges described in Section 6.05(c) or any
combination thereof with respect to no more than 45 properties (including
any Equity Ownership Interests in Subsidiaries or Joint Ventures owning
such properties); provided, however, that (i) the "Permitted Portfolio
--------- -------
Transaction" shall consist primarily of Non-Core Assets (it being
understood and agreed that in no event shall the Permitted Portfolio
Transaction include more than eight Core Assets), (ii) the Borrower and its
Subsidiaries shall be in compliance with the covenants contained in Section
6.01 on a Pro Forma Basis, (iii) the Net Cash Proceeds of any portion of
the "Permitted Portfolio Transaction" constituting an Asset Disposition or
contributions by the Borrower or any of its Subsidiaries to any Joint
Ventures of the Borrower or any of its Subsidiaries (whether existing or
created as a result of such contributions) shall be applied within ten
Business Days of each closing to repay outstanding Increasing Rate Term
Loans (which on the initial closing of the Permitted Portfolio Transaction
shall be so repaid by an amount at least equal to $125,000,000), (iv) the
aggregate fair market value of the assets disposed of by the Borrower and
its Subsidiaries pursuant to the Permitted Portfolio Transaction (as
determined by the senior management of the Borrower) shall not exceed $1
,500,000,000, (v) the consideration (taken as a whole for the entire
Permitted Portfolio Transaction) received by the Borrower and its
Subsidiaries in respect of the Permitted Portfolio Transaction (excluding
the portion thereof consisting of like-kind exchanges pursuant to and in
compliance with Section 1031 of the Code) shall consist of at least 70%
Cash Consideration, (vi) except as otherwise permitted in this Agreement,
as to assets which are not disposed of pursuant to the Permitted Portfolio
Transaction, the status of such assets (e.g., Core Asset v. Non-Core Asset)
----
shall not be changed in connection therewith or as a result thereof, and
the location of such asset within the Borrower's capital structure (e.g.,
----
whether such asset is owned by the Borrower or one of its Subsidiaries, and
in the case of a Subsidiary whether such Subsidiary is a Subsidiary
Guarantor) shall not be changed in connection therewith or as a result
thereof, (vii) all or substantially all of the assets received in
connection with like-kind exchanges pursuant to and in compliance with
Section 1031 of the Code shall be used only for hotel and hotel-related
purposes (which term, for this purpose, shall exclude free-standing retail,
golf, tennis, spa and other resort amenities), (viii) the aggregate
Investments (net of Investment Returns) in Joint Ventures made or retained
by the Borrower and its Subsidiaries pursuant to the Permitted Portfolio
Transaction shall not exceed $250,000,000 (it being understood and agreed
that Investments in Joint Ventures in excess of $250,000,000 shall be
permitted to the extent permitted by Section 6.06(g), with any excess
Investments over $250,000,000 to count against the baskets set forth in
such Section 6.06(g)), (ix) no Change of Control shall arise as a result of
such transaction, (x) except as otherwise provided in this Agreement, no
Dividends shall be paid in connection with such transaction, and in
connection with such transaction neither
8
the Borrower nor any of its Subsidiaries shall become obligated to pay any
Dividends in the future, in each case except for Dividends expressly
permitted to be paid under Section 6.07, (xi) no Unrestricted Subsidiaries
shall be created, acquired or invested in connection with such transaction,
and (xii) neither the definition of "Permitted Sale/Leaseback Transactions"
nor Section 6.05(i) shall be deemed modified by this definition or by
Section 6.17.
"Permitted Sale/Leaseback Transactions" means any sale and leaseback
-------------------------------------
transaction in respect of properties set forth on Schedule B attached to
the First Amendment and Restatement, together with any improvements,
fixtures or personal property related to and located in or on such
properties.
"Rental Payments" means, on any date, the sum of the budgeted rental
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payments (not to include reimbursement for taxes, operating expenses or
indemnification or other similar third party expenses) to be made by the
Borrower and its Subsidiaries in the two year period following such date
under lease agreements in connection with the Developmental Lease
Transactions.
"Sale/Leaseback Subsidiary" means a Subsidiary of the Borrower
-------------------------
(whether existing on or after the First Amendment and Restatement Effective
Date) whose assets consist solely of the assets held in connection with the
Permitted Sale/Leaseback Transactions.
"Sliver Equity Investment" shall mean any Person in which the Borrower
------------------------
owns, directly or indirectly, an Equity Ownership Interest, equal to 20% or
less of the aggregate Equity Ownership Interest of such Person.
"Specified Developmental Lease Transaction" means any Developmental
-----------------------------------------
Lease Transaction in which the Borrower or any Subsidiary Guarantor has
guaranteed the obligations of a Developmental Lease Subsidiary in
connection with such Developmental Lease Transaction.
"Timeshare Development Transaction" means any sale by the Borrower or
---------------------------------
any of its Subsidiaries or Joint Ventures of Unimproved Land which will be
developed by the purchaser thereof (in which the Borrower may have or make
an Investment, to the extent permitted hereunder) as a timeshare project.
"Unimproved Land" means any land which does not contain any
---------------
improvements other than infrastructure improvements.
3. Section 5.02(b) of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended to read in its entirety as follows:
(b) as soon as available, but in any event not later than 55 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower and 100 days after the end of each fiscal year of the
Borrower, (i) a certificate of a Responsible Officer
9
stating that, to the best of each such Responsible Officer's knowledge,
each Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in
this Agreement and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) in the case of quarterly or annual
financial statements, (x) beginning with the Compliance Certificate for
the Fiscal Quarter ending September 30, 1999, a Compliance Certificate
containing all information and calculations necessary for determining
compliance by the Borrower and its Subsidiaries with the provisions of this
Agreement referred to therein as of the last day of the Fiscal Quarter or
fiscal year of the Borrower, as the case may be and (y) to the extent not
previously disclosed to the Administrative Agent pursuant to this clause
(b), a listing of each new Subsidiary of any Loan Party acquired or created
by any Loan Party since the date of the most recent list delivered pursuant
to this clause (b) (or, in the case of the first such list so delivered,
since the Effective Date);
4. Section 5.02(e) of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended to read in its entirety as follows:
(e) within 10 days after the receipt thereof by the Borrower, a copy
of any "management letter" addressed to the board of directors of the
Borrower or any of its Subsidiaries from its certified public accountants
and any internal control memoranda relating thereto;
5. Section 5.09(b) of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended to read in its entirety as follows:
(b) With respect to any new Subsidiary (other than an Excluded Foreign
Subsidiary) created or acquired after the Effective Date by the Borrower or
its Subsidiaries (which, for the purposes of this paragraph (b), shall
include any existing Subsidiary that ceases to be an Excluded Foreign
Subsidiary), shall promptly (and in any event within 45 days) (unless the
Administrative Agent otherwise consents, in its reasonable discretion,
based on the economic or other burdens of effecting the following) (i)
execute and deliver to the Administrative Agent such amendments to the
Security Documents as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest in the Equity
Ownership Interest of such new Subsidiary that is owned by the Borrower
or any of its Subsidiaries, (ii) to the extent such ownership interest is
evidenced by certificated capital stock, deliver to the Administrative
Agent the certificates representing such together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of
the Borrower or such Subsidiary, as the case may be and (iii) cause such
new Subsidiary (A) to become a party to the Guaranty and Collateral
Agreement, (B) to take such actions necessary or advisable to grant to the
Administrative Agent for the benefit of the Lenders a perfected first
priority security interest in the Collateral described in the Guaranty and
Collateral Agreement with respect to such new
10
Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guaranty and
Collateral Agreement or by law or as may be requested by the Administrative
Agent and (C) to deliver to the Collateral Agent a certificate of such
Subsidiary, substantially in the form of Exhibit H to the Guaranty and
Collateral Agreement, with appropriate insertions and attachments. With
respect to any new Joint Venture created or acquired after the Effective
Date by the Borrower or any Subsidiary Guarantor, the actions described in
clauses (i) and (ii) above shall be taken as if such Joint Venture were a
Subsidiary and none of the actions described in clause (iii) above shall be
required to be taken. Notwithstanding the foregoing provisions of this
paragraph (b), none of the actions described in clauses (i), (ii) and (iii)
above shall be required to be taken with respect to any Subsidiaries and
Joint Ventures financed pursuant to Section 6.02(e) or with respect to
Special Purpose Subsidiaries, Developmental Lease Subsidiaries or
Sale/Leaseback Subsidiaries.
6. Section 6.01(c) of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended to read in its entirety as follows:
(c) Interest Coverage Ratio. Permit the Interest Coverage Ratio to be
-----------------------
less than (w) for any Test Period ending after June 30, 2000 and on or
prior to December 31, 2002, 1.75 to 1.00, (x) for any Test Period ending
after December 31, 2002 and on or prior to December 31, 2003, 1.85 to 1.00,
(y) for any Test Period ending after December 31, 2003 and on or prior to
December 31, 2004, 1.95 to 1.00 and (z) for any Test Period ending after
December 31, 2004, 2.10 to 1.00.
7. Section 6.05(c) of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended to read in its entirety as follows:
(c) the following Dispositions (collectively "Exchanges") shall be
permitted: (i) like-kind exchanges pursuant to and in compliance with
Section 1031 of the Code (with any Net Cash Proceeds received in connection
therewith not subject to a Reinvestment Notice to be applied as required
under Section 2.09), (ii) a simultaneous exchange of assets for assets
(with any Net Cash Proceeds received in connection there with not subject
to a Reinvestment Notice to be applied as required under Section 2.09) and
(iii) Dispositions of Non-Core Assets and Core Assets, for an amount equal
to at least the fair market value thereof (determined in good faith by the
senior management of the Borrower), 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 (A) within 10 days after the date of consummation of any Exchange, the
----
Borrower shall deliver a Reinvestment Notice with respect thereto and any
Reinvestment Prepayment Amount in respect thereof is applied as required
under Section 2.09 and (B) all Net Cash Proceeds of Exchanges resulting
from Dispositions of Core Assets shall be reinvested in Core Assets;
8. Section 6.05(d) of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended by (i) deleting the phrase "cash consideration"
appearing therein and (ii)
11
inserting in lieu thereof the phrase "Cash Consideration (other than in
connection with a Timeshare Development Transaction, the Disposition of which
shall not be subject to such limitation)".
9. Section 6.05 of the Increasing Rate Note Purchase and Loan
Agreement is hereby further amended by (i) deleting the word "and" contained at
the end of clause (g) thereof, (ii) deleting the period appearing at the end of
clause (h) thereof and inserting; "and" in lieu thereof and (iii) inserting
therein immediately following clause (h) thereof the following new clause (i):
"(i) the Permitted Sale/Leaseback Transactions."
10. Section 6.06(g) of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended to read in its entirety as follows:
(g) Investments (net of Investment Returns) by the Borrower and its
Subsidiaries in any Person that, prior to, or after giving effect to, such
Investment, is a Joint Venture or a Permitted Mezzanine Investment Entity,
(i) existing on the First Amendment and Restatement Effective Date and (ii)
from and after the First Amendment and Restatement Effective Date in an
aggregate amount, when added to the amount of Designated Joint Venture
Assets (which for the purposes of calculating the value of any Equity
Ownership Interest in such assets owned by the Borrower or any of its
Subsidiaries shall be the estimated percentage Equity Ownership Interest
for such asset referred to in the applicable Notice of Designation;
provided that on the earlier of (A) the closing of the conveyance, sale,
conversion or transfer of such assets referred to in such Notice of
Designation or (B) six months after the date of such Notice of Designation,
the Equity Ownership Interest in such assets shall be the actual Equity
Ownership Interest owned in such assets at the time thereof) acquired, not
to exceed (x) so long as Increasing Rate Term Loans remain outstanding,
$200,000,000 at any time outstanding (of which $60,000,000 may be in Joint
Ventures other than Sliver Equity Investments) and (y) on the first day of
the Fiscal Quarter in which the Increasing Rate Terms Loans are repaid in
full, $300,000,000 at any time outstanding (of which $90,000,000 may be in
Joint Ventures other than Sliver Equity Investments), which amounts shall
be increased to $400,000,000 and $120,000,000, respectively on the first
anniversary of the first day of the Fiscal Quarter in which the Increasing
Rate Returns Loans were repaid in full and $500,000,000 and $150,000,000
respectively, on the second anniversary of the first day of the Fiscal
Quarter in which the Increasing Rate Terms Loans were repaid in full and
thereafter; provided that in the case of Joint Ventures acquired with
-------- ----
Indebtedness described in Section 6.02(e), the net amount (net of
Investment Returns relating to Investments made or acquired pursuant to
this Clause (g)) of such Investments (when added to the Investments in
Subsidiaries described in the proviso in (1) above) shall not exceed
$150,000,000 at any time;
11. Section 6.08(a) of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended by (i) deleting the phrase "or Indebtedness under
the Increasing Rate Term
12
Loan Facility" appearing therein and (ii) deleting the phrase "and pursuant to
mandatory prepayment provisions contained in the Increasing Rate Term Loan
Facility (and as expressly permitted in this Agreement)" appearing therein.
12. Section 6.10 of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended by (i) deleting in its entirety clause (v) contained
therein and (ii) inserting the following new clause (v) in lieu thereof:
"(v) any restrictions with respect to (I) a Special Purpose Subsidiary
imposed pursuant to the documents governing the related securitization or
financing, (II) a Developmental Lease Subsidiary imposed pursuant to the
documents governing such Developmental Lease Transaction (III) a
Sale/Leaseback Subsidiary imposed pursuant to the documents governing such
Permitted Sale/Leaseback Transaction and (IV) the lessee or tenant under
Existing Operating Leases."
13. Section 6.12 of the Increasing Rate Note Purchase and Loan
Agreement is hereby amended by (i) deleting in its entirety clause (f) contained
therein and (ii) inserting the following new clause (f) in lieu thereof:
"(f) any restrictions with respect to (I) a Special Purpose Subsidiary
imposed pursuant to the documents governing the related securitization or
financing, (II) a Developmental Lease Subsidiary imposed pursuant to the
documents governing such Developmental Lease Transaction, (III) a
Sale/Leaseback Subsidiary imposed pursuant to the documents governing such
Permitted Sale/Leaseback Transaction and (IV) the lessee or tenant under
the Existing Operating Leases."
14. Section 6 of the Increasing Rate Note Purchase and Loan Agreement
is hereby further amended by inserting at the end thereof the following new
Section 6.16 and Section 6.17:
"Section 6.16 Developmental Lease Transactions. Enter into any
----------------------------------------------
Developmental Lease Transaction, provided, that any Developmental Lease
--------
Transaction may be entered into if, at the time of the entering into such
transaction (and after giving effect thereto), the aggregate amount of
budgeted rental payments (not to include reimbursement for taxes, operating
expenses or indemnification or other similar third party expenses) under
all Developmental Lease Transactions then in effect for the twelve month
period commencing on the first day of the immediately following month shall
not exceed (i) $15,000,000 at all times during the fiscal year ending
December 31, 2001 and (ii) $20,000,000 at all times during any fiscal year
thereafter.
Section 6.17 Permitted Portfolio Transaction. Notwithstanding
-------------------------------
anything to the contrary in this Agreement (but subject to the terms and
conditions set forth below and in the definition of "Permitted Portfolio
Transaction"), the Borrower and its Subsidiaries shall be permitted to
enter into the Permitted Portfolio Transaction so long as (a) the Net Cash
Proceeds of any portion of the Permitted Portfolio Transaction constituting
an Asset Disposition or contributions by the Borrower or any of its
Subsidiaries to Joint Ventures of
13
the Borrower or any of its Subsidiaries (whether existing or created as a
result of such contributions) shall be applied within ten Business Days of
each closing to repay the outstanding Indebtedness of the Borrower in the
following manner: (i) first, to repay Increasing Rate Term Loans (which on
-----
the initial closing date of the Permitted Portfolio Transaction shall be so
repaid by an amount at least equal to $125,000,000) and (ii) second, to the
------
extent that the Increasing Rate Loans are all repaid in full, in accordance
with the priorities set forth in Section 2.09(c); and (b) the consideration
therefor shall be equal to at least the fair market value thereof as
determined by the senior management of the Borrower. It is understood and
agreed that, with respect to Investments in connection with the Permitted
Portfolio Transaction, such Investments shall be permitted under Section
6.06(g), except that any Dollar limitations, thresholds or restrictions or
similar baskets set forth in Section 6.06(g) shall, after the consummation
of such Permitted Portfolio Transaction, be calculated without giving
effect to such Investments as if such Permitted Portfolio Transaction had
not occurred."
15. Schedule I to the Increasing Rate Note Purchase and Loan
Agreement is hereby amended to read in its entirety as follows:
SCHEDULE I
----------
APPROVED PROCUREMENT SAVINGS
----------------------------
----------------------------------------------------
Test Period Ending
------------------
====================================================
September 30, 1999 $40,000,000
----------------------------------------------------
December 31, 1999 $34,300,000
----------------------------------------------------
March 3l, 2000 $28,600,000
----------------------------------------------------
June 30, 2000 $22,900,000
----------------------------------------------------
September 30, 2000 $19,800,000
----------------------------------------------------
December 3l, 2000 $16,500,000
----------------------------------------------------
March 3l, 2001 $13,200,000
----------------------------------------------------
June 30, 2001 $ 9,900,000
----------------------------------------------------
September 30, 2001 $ 6,600,000
----------------------------------------------------
December 31, 2001 $ 3,300,000
----------------------------------------------------
14
16. In order to induce the undersigned Lenders to enter into this
Amendment and Restatement, the Borrower hereby represents and warrants that (x)
no Default or Event of Default exists on the First Amendment and Restatement
Effective Date after giving effect to this Amendment and Restatement and (y) all
of the representations and warranties contained in the Increasing Rate Note
Purchase and Loan Agreement shall be true and correct in all material respects
as of the First Amendment and Restatement Effective Date after giving effect to
this Amendment and Restatement, with the same effect as though such
representations and warranties had been made on and as of the First Amendment
and Restatement Effective Date (it being understood that any representation or
warranty made as of a specified date shall be required to be true and correct in
all material respects only as of such specific date).
17. This Amendment and Restatement is limited as specified and shall
not constitute a modification, acceptance or waiver of any other provision of
the Increasing Rate Note Purchase and Loan Agreement or any other Loan Document.
18. This Amendment and Restatement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the borrower and the Administrative Agent.
19. THIS AMENDMENT 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.
20. This Amendment and Restatement shall become effective on the date
(the "First Amendment and Restatement Effective Date") when (i) the Amendment
and Restatement of even date herewith to the Credit Agreement, dated June 30,
1999, among the Borrower, the lenders party thereto, NationsBank, N.A., and
Bankers Trust Company, as Syndication Agents (the "Syndication Agents"), Credit
Lyonnais New York Branch, as Documentation Agent (the "Documentation Agent"),
Bear Xxxxxxx Corporate Lending Inc., as Co-Documentation Agent (the "Co-
Documentation Agent") and The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent") has become effective under the terms thereof.
21. From and after the First Amendment and Restatement Effective Date
all references in the Increasing Rate Note Purchase and Loan Agreement and the
other Loan Documents to the Increasing Rate Note Purchase and Loan Agreement
shall be deemed to be references to the Increasing Rate Note Purchase and Loan
Agreement as modified hereby.
*****
15
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment and Restatement to be duly executed and delivered
as of the date first above written.
WYNDHAM INTERNATIONAL, INC.,
By /s/ Xxxxxxx X. Xxxxx
-----------------------------
Title: Xxxxxxx X. Xxxxx
EVP & Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent,
By /s/ Xxxx X. Mix
-----------------------
Title: Xxxx X. Mix
Vice President
16
