Exhibit 10.15
AMENDMENT NO. 1 TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
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AMENDMENT NO. 1 TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
("Amendment"), dated as of the 29th day of February, 1996, between HOSPITALITY
PROPERTIES TRUST, a Maryland real estate investment trust (the "Borrower") and
DLJ MORTGAGE CAPITAL, INC., a Delaware corporation (the "Lender").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Revolving Credit Agreement dated as
of August 22, 1995, as amended and restated pursuant to that certain Amended and
Restated Revolving Credit Agreement dated as of December 29, 1995, each between
the Borrower and the Lender (the "Original Agreement"), the Lender agreed to
make to the Borrower revolving credit advances of up to $200,000,000 in
aggregate principal amount outstanding at any one time, for the purposes and
upon the terms and subject to the conditions set forth therein;
WHEREAS, immediately prior to the date hereof no advances have been
made under the Original Agreement;
WHEREAS, the Borrower and the Lender have agreed to amend the maturity
date and certain other terms and provisions of the Original Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree that the aforementioned recitals are true and correct and hereby
incorporated herein and hereby further agree, for themselves, their successors
and assigns, as follows:
1. Capitalized terms used but not otherwise defined in this Amendment
shall have the meanings ascribed to such terms in the Original Agreement.
2. The Borrower acknowledges, covenants, warrants, represents and agrees
that:
2.1 no Material Adverse Change or Material Adverse Effect has
occurred since December 29, 1995;
2.2 there are no judgments against the Borrower or any of its
Subsidiaries in any courts of the United States and there is no litigation,
active, pending or threatened, against the Borrower or any of its Subsidiaries
which might adversely affect the Borrower's or any of its Subsidiaries' ability
to pay when due any amounts which may become payable in respect of the Loans;
2.3 no default, nor event which with notice and/or passage of time
would constitute a default, has occurred and is continuing under the Loan
Documents;
2.4 there are no offsets, defenses or counterclaims to the Borrower's
obligations under the Loans and the Loan Documents; and
2.5 the Borrower has not entered into any agreements with creditors
or third parties that expressly or otherwise prohibit the Borrower from entering
into any extension or modification of the Loans or any Loan Document in
connection therewith, except as may be provided in any Assignment Agreements.
3. The Borrower and the Lender hereby agree that the Original Agreement
shall and is hereby deemed to be amended as follows:
3.1 The following defined terms set forth in Section 1.1 of the
Original Agreement shall be deemed deleted therefrom and all references to such
terms as they appear in the Original Agreement shall be deemed deleted:
Conversion Date
Final Borrowing Date
Treasury Rate
Treasury Constant Maturity Yield Index
Yield Maintenance Amount
Yield Maintenance Premium
3.2 The definition of Final Maturity Date set forth in Section 1.1 of
the Original Agreement shall be deemed deleted and the following shall be deemed
substituted therefor:
""Final Maturity Date" means December 31, 1998".
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3.3 In the definition of Hotel Facility set forth in Section 1.1 of
the Original Agreement, the words ", subject to the provisions of Section 3.2
hereof," shall be deemed inserted between the words "mean" and "each" in the
first line thereof.
3.4 Paragraph (d) of the definition of Interest Period set forth in
Section 1.1 of the Original Agreement shall be deemed deleted in its entirety.
3.5 Paragraph (i) in the definition of Loan to Value Requirement set
forth in Section 1.1 of the Original Agreement shall be deemed deleted in its
entirety and the following shall be deemed substituted therefor: "(i) fifty
percent (50%) of the aggregate of the Fair Market Values for all of the
Mortgaged Properties, and".
3.6 The following shall be deemed inserted in Section 1.1 of the
Original Agreement between the definitions of Responsible Officer and Secured
Indebtedness set forth therein:
""Second Facility" means the proposed revolving credit facility in a
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maximum principal amount of up to approximately $250,000,000, to be
entered into by and between the Borrower and the Lender."
3.7 In Section 2.1 of the Original Agreement, the words "the Final
Borrowing Date, and to maintain the Loans outstanding to the Borrower on the
Final Borrowing Date from such date until" in the sixth through eighth lines
thereof, shall be deemed deleted.
3.8 The words "Final Borrowing Date" in the fifteenth and seventeenth
lines of Section 2.1 of the Original Agreement shall be deemed deleted and the
words "Final Maturity Date" shall be deemed substituted in each place therefor.
3.9 Paragraph (b) of Section 2.5 of the Original Agreement and
Paragraph (a) of Section 2.6 of the Original Agreement shall each be deemed
deleted in its entirety.
3.10 In Paragraph (b) of Section 2.6 of the Original Agreement:
(a) the words commencing with "(i) during the period (y) from the
Closing Date...." in the seventh line thereof through and including "....respect
to such prepayment" in the fourteenth line thereof shall be deemed deleted in
their entirety and the words "without premium or penalty" shall be deemed
substituted therefor; and
(b) the second complete sentence thereof beginning "The Lender
shall deliver notice..." shall be deemed deleted in its entirety.
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3.11 In Paragraph (d) of Section 2.6 of the Original Agreement, the
words "and any Yield Maintenance Amount due pursuant to Section 2.5(b) above"
shall be deemed deleted in their entirety.
3.12 In Section 2.7 of the Original Agreement:
(a) the words ": Conversion of Loans on the Conversion Date"
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shall be deemed deleted from the heading thereof;
(b) the words "(a) Prior to the Conversion Date," shall be
deemed deleted from Paragraph (a) thereof; and
(c) Paragraph (b) thereof shall be deemed deleted in its
entirety.
3.13 In Section 2.8 of the Original Agreement:
(a) the words "Prior to the Conversion Date" shall be deemed
deleted in Paragraph (a) thereof;
(b) the words "Conversion Date" in the fifth line of Paragraph
(a) thereof shall be deemed deleted and the words "Final Maturity Date" shall be
deemed substituted therefor; and
(c) Paragraph (b) thereof shall be deemed deleted in its
entirety.
3.14 The second complete sentence of Paragraph (a) of Section 2.9 of
the Original Agreement shall be deemed deleted in its entirety.
3.15 The following shall be deemed inserted after the first complete
sentence of Section 3.2 of the Original Agreement:
"The parties acknowledge and agree that certain of the Hotel
Properties which are not Mortgaged Properties pursuant to this
Agreement may be granted as collateral security for the Second
Facility and that to the extent mortgage documents are executed
and delivered (and whether or not the same are recorded) in
respect of any Hotel Facility as security for the Second
Facility, such Hotel Facility shall be deemed to no longer be a
Hotel Facility for the purposes of this Agreement, to the intent
that no Hotel Facility shall be granted as collateral for both
the purposes of loans obtained pursuant to this Agreement and the
Second Facility."
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3.16 Paragraph (r) of Section 4.1 of the Original Agreement shall be
deemed deleted in its entirety.
3.17 The following shall be deemed added before the word "and" at the
end of subparagraph (E) of Section 4.2(d)(iv) of the Original Agreement:
"provided that, notwithstanding the foregoing, a subordination, non-disturbance
and attornment agreement in the form attached as Exhibit K hereto and made a
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part hereof, duly executed and acknowledged by the Borrower and the Operating
Lessee shall be required in respect of each such Selected Property."
3.18 The following new section shall be seemed added after Section
7.22 of the Original Agreement:
"7.23 Amendment to Management Agreement. The Borrower shall use all
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reasonable efforts to procure the following within three months of the date
hereof: (i) an amendment to the definition of "Qualified Loan" in the
Management Agreement and to any other applicable provisions of the
Management Agreement including, without limitation, Section 6.09 thereof,
to the effect that all and any Loans made pursuant to this Agreement,
whether before or after the date of such amendment, shall comply with the
requirements of such definition and that in the context of cross
collateralization of the Hotel Facilities, the test for Qualified Loans
shall be applied on a consolidated basis for all such Hotel Facilities to
be mortgaged as collateral for the Loans hereunder, and (ii) a written and
binding agreement from the Management Company that, notwithstanding any
provision to the contrary set forth in any Assignment Agreement, if this
Agreement shall be amended, modified or supplemented without the prior
written consent of the Management Company, provided that all Loans made by
the Lender hereunder comply with the requirements for Qualified Loans, as
the same are set forth in the Management Agreement and may be amended
pursuant to subparagraph (i) above, such amendment, modification or
supplement shall not disqualify the Loans from being Qualified Loans and
Lender shall remain entitled to the benefits of the provisions of any
existing Assignment Agreements and to the provisions of the Management
Agreement intended for the benefit of a Qualified Lender as such term is
defined in the Management Agreement."
3.19 The words "and Section 8.2(vi)" shall be deemed added at the end
of Paragraph (n) of Section 8.1 of the Original Agreement.
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3.20 The following subparagraph shall be deemed added at the end of
Paragraph (a) of Section 8.2 of the Original Agreement:
"(vi) Indebtedness of the Borrower or any of its Subsidiaries
arising pursuant to the Second Facility."
3.21 In Paragraph (d) of Section 8.5 of the Original Agreement:
(a) the words commencing with ": (i) during the period..." in the
fourth and fifth lines thereof through and including "...Maturity Date" in the
ninth line thereof shall be deemed deleted in their entirety; and
(b) the words "and, after the Conversion Date, a sum equal to the
Yield Maintenance Amount" at the end thereof shall be deemed deleted in their
entirety.
3.22 The words commencing with "together with..." through and
including "...the Note" in the ninth through eleventh lines of Section 9.2 of
the Original Agreement shall be deemed deleted in their entirety.
3.23 Sections 10.16, 10.17 and 10.18 of the Original Agreement shall
be deemed deleted in their entirety.
3.24 Exhibit K to the Original Agreement shall be deemed deleted in
its entirety and there shall be deemed substituted therefor an Exhibit in the
form of Exhibit K attached hereto and made a part hereof.
4. The Borrower and the Lender hereby acknowledge that immediately
following the execution and delivery hereof, the Lender shall fund the initial
Loan under the Original Agreement as amended hereby (as amended, the "Credit
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Agreement"). The Initial Selected Properties selected by the Lender pursuant to
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Section 3.2 of the Credit Agreement include the Hotel Properties known as (i)
Courtyard by Marriott, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
and (ii) Courtyard by Marriott, 000 Xxxxx 00 Xxxxx, Xxxxxx, Xxx Xxxxxx 00000
(said Hotel Properties, the "PA and NJ Properties"). The Borrower is unable to
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deliver on the Closing Date, Mortgage Documents in respect of the PA and NJ
Properties and the Lender has agreed to fund the initial Loan notwithstanding
such non-delivery but only upon the condition that such Mortgage Documents are
duly executed and delivered to the Lender as soon as possible after the date
hereof but in any event no later than March 8, 1995. Failure by the Borrower to
deliver the Mortgage Documents in respect of the PA and NJ Properties on or
before March 8, 1995 shall constitute an Event of Default under the Credit
Agreement entitling the Lender to exercise all or any of its remedies under the
Credit Agreement.
5. Except as specifically amended herein, all of the terms, covenants,
conditions and
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stipulations contained in the Original Agreement and all of the other Loan
Documents are hereby ratified and confirmed in all respects and shall continue
to apply with full force and effect;
6. Neither this Amendment nor any other Loan Document nor any provision
hereof or thereof may be modified, amended, changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
7. This Amendment may be executed in one or more counterparts each of
which shall be an original but all of which when taken together shall constitute
one and the same instrument. The failure of any party listed below to execute,
acknowledge or join in this Amendment, or any counterpart hereof, shall not
relieve the other signatories from the obligations hereunder.
8. This Amendment is and shall be deemed to be a contract entered into
pursuant to the laws of the State of New York and shall in all respects be
governed, construed, applied and enforced in accordance with the laws of the
State of New York.
9. The Borrower agrees to submit to personal jurisdiction in the State of
New York in any action or proceeding arising out of this Amendment. In
furtherance of such agreement, the Borrower hereby agrees and consents that
without limiting other methods of obtaining jurisdiction, personal jurisdiction
over the Borrower in any such action or proceeding may be obtained within or
without the jurisdiction of any court located in New York and that any process
or notice of motion or other application to any such court in connection with
any such action or proceeding may be served upon the Borrower by registered or
certified mail to, or by personal service at, the last known address of the
Borrower, whether such address be within or without the jurisdiction of any such
court. The Borrower hereby agrees that the venue of any litigation arising in
connection with the indebtedness, or in respect of any of the obligations of the
Borrower under this Amendment, shall, to the extent permitted by law, be in New
York County.
10. This Amendment is binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and assigns.
11. Nothing in this Amendment or any other Loan Document is intended to or
shall be deemed to create any rights or obligations of partnership, joint
venture, or similar association among the parties hereto.
12. If any term, covenant, provision or condition of this Amendment or any
of the other Loan Documents shall be held to be invalid, illegal or
unenforceable in any respect, this Amendment shall be construed without such
term, covenant, provision or condition.
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13. The parties hereto hereby irrevocably and unconditionally waive any
and all rights to trial by jury in any action, suit or counterclaim arising in
connection with, out of or otherwise related to this Amendment and every other
Loan Document heretofore, now or hereafter executed and/or delivered in
connection therewith, the Loans and all other obligations of the Borrower
related thereto or in any way related to this transaction or otherwise with
respect to the Mortgaged Properties.
14. THE DECLARATION OF TRUST OF THE BORROWER, DATED MAY 12, 1995, A COPY
OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO ("THE DECLARATION"), IS DULY
FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE
OF MARYLAND, PROVIDES THAT THE NAME "HOSPITALITY PROPERTIES TRUST" REFERS TO THE
TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE
BORROWER SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, THE BORROWER. ALL PERSONS DEALING WITH THE
BORROWER, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE BORROWER FOR THE
PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
HOSPITALITY PROPERTIES TRUST
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Treasurer
DLJ MORTGAGE CAPITAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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Exhibit K
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Form of Subordination,
Non-Disturbance and Attornment Agreement
(See Attached)
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