EXHIBIT 99.3
FOURTH AMENDMENT AND RESTATEMENT
FOURTH AMENDMENT AND RESTATEMENT (this "Fourth 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 Increasing Rate Note Purchase and Loan Agreement referred to below (the
"Lenders"), X.X. XXXXXX SECURITIES INC. ("XX Xxxxxx"), as Lead Arranger and Book
Manager, BEAR XXXXXXX CORPORATE LENDING INC., as Co-Arranger and Syndication
Agent and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Syndication Agent (each a
"Syndication Agent", together the "Syndication Agents"), and JPMORGAN CHASE BANK
(f/k/a 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 IRL Agreement referred to
below as amended hereby, provided that the terms first defined in the Fifth
Amendment and Restatement dated as of May 29, 2003 to the Credit Agreement (as
defined in the IRL Agreement) (the "Credit Agreement Fifth Amendment") shall
have the same meanings when used herein.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, XX Xxxxxx, the Syndication
Agents and the Administrative Agent are parties to 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 "IRL Agreement");
WHEREAS, the parties hereto wish to amend the IRL Agreement as
herein provided; and
WHEREAS, subject to the terms and conditions of this Fourth
Amendment and Restatement, the parties hereto agree as follows:
I. Agreements
1. The Lenders hereby (i) acknowledge the changes made to Section
3, 5 and 6 of the Credit Agreement (and to the definitions used therein) by the
Credit Agreement Fifth Amendment (including pursuant to Section IV.1(O)
therein), which changes are binding upon the Lenders pursuant to Section 9.02(d)
of the IRL Agreement, and (ii) agree to the application of Net Cash Proceeds as
set forth in the amendment to Section 2.11(f) of the Credit Agreement contained
in Section III.1(D) of the Credit Agreement Fifth Amendment for the period
ending on the Modified Extension Date and in Section IV.1(J) for the period
commencing on the Post-Extension Date.
2. On the Post-Extension Date, the Loans of the Consenting IRL
Lenders then outstanding will be converted into Term Loans under the Credit
Agreement and continue outstanding as Term Loans II (as more fully provided for
in the Credit Agreement Fifth Amendment). Each Consenting IRL Lender will be
entitled to the rights and subject to the obligations of a Term Loan Lender
under the Credit Agreement with respect to its Term Loans II
and shall thereafter cease to be a Lender, and shall have no rights or
obligations under the IRL Agreement.
3. The Lenders hereby agree and consent to (x) Section II.1 of the
Credit Agreement Fifth Amendment and (y) to all future changes to the Guaranty
and Collateral Agreement effected after the Extension Date in accordance with
the provisions thereof as modified by such consent.
4. Notwithstanding any other provision of the IRL Agreement, this
Fourth Amendment and Restatement or the Credit Agreement Fifth Amendment, no
amendment, change or waiver of the definition of "Extension Date" and/or, prior
to the Modified Extension Date, to Section 2.11(f) of the Credit Agreement may
be made without the consent of Consenting IRL Lenders holding at least 66-2/3%
of the Designated IRL Loans at the time of any such amendment, change or waiver
(with Consenting IRL Lenders and Designated IRL Loans having the definitions in
effect on the Fifth Amendment and Restatement Effective Date).
II. Amendments at the Fourth Amendment Effective Date
1. Section 1.01 of the IRL Agreement is amended by adding after
the reference to "Agreement," in the first sentence the following:
"the terms Designated IRL Loans, Extension Date, Fifth Amendment and
Restatement Effective Date and Modified Extension Date shall have the
meanings provided in the Credit Agreement as in effect on the Fifth
Amendment and Restatement Effective Date and"
2. Section 2.08 of the IRL Agreement is amended by adding a new
sentence at the end thereof to read:
"Notwithstanding the foregoing, all prepayments of the Loans made on or
prior to the Modified Extension Date pursuant to this Section 2.08 will
be applied only to Designated IRL Loans, pro rata among same."
3. Section 2.09(a) of the IRL Agreement is amended by adding after
the reference therein to "Loans" the phrase "(other than Designated IRL Loans)"
and Sections 2.09(b), (c), (d), (e) and (f) of the IRL Agreement are deleted in
their entirety, together with all defined terms used therein (directly or
indirectly) and not used elsewhere in the IRL Agreement, provided that if the
Extension Date has not then occurred, on the Modified Extension Date all of
Section 2.09 (and related definitions) shall be reinstated in full in the IRL
Agreement.
4. Section 6.08(a) of the IRL Agreement is amended by (i)
inserting an "(x)" immediately prior to the reference to "Senior Notes" therein,
(ii) deleting the phrase "or Term Loans under the Senior Credit Facilities"
immediately after such reference to "Senior Notes" and (iii) inserting after the
reference therein to "by the terms thereof" the following:
"or (y) prior to the Extension Date, the Term Loans under the Senior
Credit Facilities, other than (i) interest payments expressly required
by the terms thereof and (ii) as
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provided in Sections 2.10 and 2.11 of the Credit Agreement as in effect
after giving effect to the Fifth Amendment and Restatement Effective
Date,"
5. 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".
III. Miscellaneous
1. In order to induce the undersigned Lenders to enter into this
Fourth Amendment and Restatement, the Borrower hereby represents and warrants
that (x) no Default or Event of Default exists on the Fourth Amendment Effective
Date (as defined below) after giving effect to this Fourth Amendment and
Restatement and (y) all of the representations and warranties contained in the
IRL Agreement shall be true and correct in all material respects as of the
Fourth Amendment Effective Date after giving effect to this Fourth Amendment and
Restatement, with the same effect as though such representations and warranties
had been made on and as of the Fourth Amendment 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).
2. This Fourth Amendment and Restatement is limited as specified
and shall not constitute a modification, acceptance or waiver of any other
provision of the IRL Agreement or any other Loan Document.
3. This Fourth 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.
4. THIS FOURTH 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 Fourth Amendment and Restatement shall become effective on
the date (the "Fourth Amendment Effective Date") on which the Cut-Off Time
occurs if each of the following conditions shall have been satisfied:
(i) the Borrower and Lenders holding at least 95% of the Loans
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 Credit Agreement Fifth Amendment shall have become
effective in accordance with its terms; and
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(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
Fourth Amendment Effective Date.
Unless the Administrative Agent has received actual notice from any
Lender that the conditions contained in clauses (ii) and/or (iii) above have not
been satisfied, upon the satisfaction of the conditions described in clause (i)
of the immediately preceding sentence and upon the Administrative Agent's good
faith determination that the other conditions described above have been met, the
Fourth Amendment 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 Fourth Amendment 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 pay (x) each Lender which executed and
delivered a counterpart of this Fourth Amendment and Restatement on or prior to
the Cut-Off Time (a "Consenting Lender") a non-refundable cash fee (the
"Amendment Fee") in an amount equal to .125% of the outstanding principal amount
of the Loans of such Lender on the Fourth Amendment Effective Date and (y) if
the Extension Date occurs, each Consenting Lender a non-refundable cash fee (the
"Extension Fee") in an amount equal to .50% of its Loans on the Post-Extension
Date (prior to the conversion thereof into Term Loans II), 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 Fourth Amendment 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 Fourth Amendment Effective Date all
references in the IRL Agreement and the other Loan Documents to the IRL
Agreement shall be deemed to be references to the IRL Agreement as modified
hereby. Except as modified hereunder, the terms, provisions and conditions of
the IRL 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 Fourth 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: __________________________________
Name:
Title:
[SIGNATURE PAGE TO THE FOURTH AMENDMENT AND RESTATEMENT TO THE INCREASING RATE
NOTE PURCHASE AND LOAN AGREEMENT]
