EXHIBIT 10.10(c)
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED SECURED REVOLVING CREDIT
AGREEMENT ("Amendment") is made as of March 26, 2004 by and among the following:
EQUITY INNS PARTNERSHIP, L.P., a Tennessee limited partnership having its
principal place of business at c/o Equity Inns, Inc., 0000 Xxxx Xxxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxxxx 00000 ("Operating Partnership"), the sole general partner
of which is Equity Inns Trust;
EQUITY INNS/WEST VIRGINIA PARTNERSHIP, L.P., a Tennessee limited
partnership having its principal place of business c/o Equity Inns, Inc., 0000
Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000 ("EIP/WV"), the sole general
partner of which is Equity Inns Services, Inc., a Tennessee corporation which is
wholly-owned by Equity Inns, Inc.;
EQUITY INNS PARTNERSHIP II, L.P., a Tennessee limited partnership having
its principal place of business c/o Equity Inns, Inc., 0000 Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000 ("Equity II"), the sole general partner
of which is Equity Inns Trust and the sole limited partner of which is the
Operating Partnership (the Operating Partnership, EIP/WV and Equity II being
referred to herein collectively as the "Borrower");
BANK ONE, NA ("Bank One"), a national bank organized under the laws of the
United States of America having an office at 0 Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, as Administrative Agent ("Administrative Agent") and as a Lender; and
Each of the remaining Lenders that are signatories hereto.
RECITALS
A. Borrower is primarily engaged in the business of the acquisition and
development of premium limited service, premium extended stay and premium
all-suite and full-service hotel properties.
B. The parties hereto have entered into an Amended and Restated Secured
Revolving Credit Agreement dated as of June 11, 2003, as amended by that First
Amendment to Credit Agreement dated as of January 21, 2004 (the "Credit
Agreement") to make loans available to the Borrower pursuant to the terms
thereof ("Facility"). All capitalized terms used herein and not otherwise
defined shall have the meanings given to them in the Agreement.
C. Borrower has requested a change in certain terms contained in the
Credit Agreement and the Lenders have agreed to such a change on the terms
contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
AMENDMENTS
1. The foregoing recitals to this Amendment are incorporated
into and made part of this Amendment.
2. The definition of "Cash Available for Distribution" is
added to Article I of the Credit Agreement to read as follows:
"Cash Available for Distribution" for any period, means
Funds From Operations adjusted by (i) subtracting the
normalized recurring capitalized expenditures at a
minimum amount equal to the Agreed FF&E Reserve (e.g.
new floor covering, carpeting, drapes, paint, and
exterior preparation), (ii) adjusted for all non-cash
items, and (iii) adjusted for any non-recurring
expenditures and extraordinary items.
3. Section 9.4 (b) is hereby amended and restated to read as
follows:
(b) For each fiscal quarter, the aggregate amount
of dividends paid by Equity Inns (excluding Preferred
Stock Expense) for the most recent four fiscal quarters
for which financial reports are available to exceed the
lesser of: (i) an amount equal to 1.05 times the Cash
Available for Distribution for such period and (ii) an
amount equal to $0.52 per share of common stock for such
period; provided however, if Equity Inns increases
dividends to greater than $0.52 per share of common
stock, provided that the ratio of such dividends paid
for the most recent four (4) fiscal quarters to Cash
Available for Distribution for such period is less than
or equal to 0.90, then, the maximum amount of such
dividends payable for such fiscal quarter and each
fiscal quarter thereafter shall not cause the ratio of
such dividends for the most recent four (4) fiscal
quarters to Cash Available for Distribution for such
period to exceed 0.90. Such amount of $0.52 per share of
common stock shall be adjusted appropriately in the case
of any stock split or other such change in common stock
structure. Cash Available for Distribution shall be
determined on a consistent basis with the prior
financial statements of Equity Inns, as approved by the
Administrative Agent, provided that Equity Inns may, so
long as an Event of Default does not exist, pays the
minimum amount of dividends required to maintain its tax
status as a real estate investment trust under the Code.
4. Section 9.4 (d) is hereby deleted in its entirety.
5. Exhibit I to the Credit Agreement is hereby deleted in its
entirety and replaced by Exhibit I attached hereto.
6. Borrower hereby represents and warrants that:
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(a) no Default or Unmatured Default exists under the
Loan Documents;
(b) the Loan Documents are in full force and effect
and Borrower has no defenses or offsets to, or
claims or counterclaims relating to, its
obligations under the Loan Documents;
(c) there has been no material adverse change in the
financial condition of Borrower as shown in its
December 31, 2003 financial statements;
(d) Borrower has full corporate power and authority to
execute this Amendment and no consents are
required for such execution other than any
consents which have already been obtained; and
(e) all representations and warranties contained in
Article 6 of the Credit Agreement are true and
correct as of the date hereof and all references
therein to "the date of this Agreement" shall
refer to "the date of this Amendment."
7. Except as specifically modified hereby, the Credit
Agreement is and remains unmodified and in full force and effect and is
hereby ratified and confirmed. All references in the Loan Documents to the
"Credit Agreement" henceforth shall be deemed to refer to the Credit
Agreement as amended by this Amendment.
8. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement,
and any of the parties hereto may execute this Amendment by signing any
such counterpart. This Amendment shall be construed in accordance with the
internal laws (and not the law of conflicts) of the State of Illinois, but
giving effect to federal laws applicable to national banks.
9. This Amendment shall become effective when it has been
executed by Borrower, Administrative Agent, and the Lenders.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative
Agent have executed this Amendment as of the date first above written.
BORROWER: EQUITY INNS PARTNERSHIP, L.P.
By: EQUITY INNS TRUST, its General Partner
By: /s/ J. Xxxxxxxx Xxxxxxx
---------------------------------------
Title: Chief Financial Officer
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EQUITY INNS/WEST VIRGINIA PARTNERSHIP, L.P.
By: EQUITY INNS SERVICES, INC., its General
Partner
By: /s/ J. Xxxxxxxx Xxxxxxx
---------------------------------------
Title: Chief Financial Officer
------------------------------------
EQUITY INNS PARTNERSHIP II, L.P.
By: EQUITY INNS TRUST, its General Partner
By: /s/ J. Xxxxxxxx Xxxxxxx
---------------------------------------
Title: Chief Financial Officer
------------------------------------
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LENDERS: BANK ONE, NA
Individually and as Administrative Agent
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Title: Associate Director
-------------------------------------
Address for Notices:
Corporate Real Estate Division
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
S-2
CREDIT LYONNAIS NEW YORK BRANCH
Individually and as Syndication Agent and Co-Lead
Arranger
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Title: Vice President
------------------------------------
Address for Notices:
Lodging Group
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: 212/000-0000
Telecopy: 212/261-7532
S-3
FLEET NATIONAL BANK
Individually and as Documentation Agent
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Title: Director
------------------------------------
Address for Notices:
000 Xxxxxxxxx Xxxxxx Xxxxx X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 770-391-9811
S-4
NATIONAL BANK OF COMMERCE
By: /s/ Xxxx Xxxxxx
---------------------------------------
Title: Associate Vice President
------------------------------------
Address for Notices:
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: 901/000-0000
Telecopy: 901/757-4883
S-5
AMSOUTH BANK
By: /s/ Xxxxxxxx Xxxxx
---------------------------------------
Title: Vice President
------------------------------------
Address for Notices:
0000 Xxxxx Xxxxxx Xxxxx
XxXxxxx-Xxxxx Tower, 9th Floor
Birmingham, Alabama 35203
Attention: Xxxxxxxx Xxxxx
Telephone: 205/000-0000
Telecopy: 205/326-4075
S-6
UNION PLANTERS BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
------------------------------------
Address for Notices:
0000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: 901/000-0000
Telecopy: 901/580-5451
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The undersigned, Equity Inns, Inc. and Equity Inns Trust, are parties to
the Credit Agreement for purposes of making the representations and warranties
contained in Article VII thereof and agreeing to perform certain of the
covenants described in Article VIII thereof and hereby confirm that the Credit
Agreement remains in full force and effect and hereby consent to the terms of
this Amendment.
EQUITY INNS, INC.
By: /s/ J. Xxxxxxxx Xxxxxxx
---------------------------------------
Title: Chief Financial Officer
------------------------------------
EQUITY INNS TRUST
By: /s/ J. Xxxxxxxx Xxxxxxx
---------------------------------------
Title: Chief Financial Officer
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S-8
EXHIBIT I
FORM OF COMPLIANCE CERTIFICATE
[This exhibit has been omitted from this filing. A copy of the exhibit will be
furnished for the staff of the Commission upon request.]
