Exhibit 10.1
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
September 9, 2005, among Xxxx X. Xxxxxxx Hotels, L.P., a Delaware limited
partnership (the "Company"), Xxxx X. Xxxxxxx Hotels Finance Corporation III, a
Missouri corporation ("Finance" and, together with the Company, the "Issuers"),
and Wachovia Bank, National Association, as trustee (the "Trustee").
WHEREAS, the Issuers and the Trustee are parties to that certain Indenture,
dated as of May 21, 2002 (the "Indenture"; capitalized terms used but not
defined herein shall have the same meanings ascribed to such terms in the
Indenture), pursuant to which the Issuers' Series A and Series B 8 7/8% First
Mortgage Notes due May 15, 2012 (such Series B Notes being hereinafter referred
to as the "Notes") were issued;
WHEREAS, Section 9.02 of the Indenture provides that the Issuers and the
Trustee may make certain amendments to the Indenture with the written consent of
the Holders of not less than a majority in aggregate principal amount of the
Notes then outstanding voting as a single class;
WHEREAS, JQH Finance, LLC, a Delaware limited liability company (the
"Purchaser") distributed an Offer to Purchase and Consent Solicitation Statement
dated as of August 26, 2005 (the "Offer To Purchase") in order to, among other
things, make an offer to purchase (the "Offer") all outstanding Notes upon terms
and conditions described in the Offer to Purchase and to solicit consents (the
"Consents") from the Holders to amendments to the Indenture (the "Amendments");
WHEREAS, Holders of at least a majority in aggregate principal amount of
the Notes outstanding have validly given and not validly withdrawn their
Consents to the Amendments; and
WHEREAS, the execution of this Supplemental Indenture by the parties hereto
is in all respects authorized by the provisions of the Indenture, the Issuers
have delivered to the Trustee resolutions of the Board of Directors of each
Issuer authorizing the execution of this Supplemental Indenture, an Officers'
Certificate and an Opinion of Counsel with respect to such authorization, and
all things necessary to make this Supplemental Indenture a valid agreement of
the Issuers and the Trustee in accordance with its terms have been done.
NOW THEREFORE, in consideration of the foregoing and for good and valuable
consideration, the receipt of which is hereby acknowledged, the Issuers and the
Trustee mutually covenant and agree as follows:
1. EFFECT. This Supplemental Indenture shall become effective upon its
execution and delivery by the parties hereto. Notwithstanding the foregoing, the
amendments set forth in Section 2 below shall become operative only when the
Notes that were validly tendered and not validly withdrawn prior to the
execution and delivery of this Supplemental Indenture are purchased by the
Purchaser pursuant to the terms of the Offer; provided, however, that the
amendment set forth in Section 2(g) hereof shall become operative immediately
upon the execution and delivery of this Supplemental Indenture by the parties
hereto; provided further, however, that if Notes are not purchased by the
Purchaser pursuant to the terms of the Offer, the immediately preceding proviso
shall be deemed to be deleted from this Supplemental Indenture, and the
amendment referred to therein shall be revoked and be deemed to never have
become operative. If, after the date hereof, either the Offer is terminated or
withdrawn or all payments in respect of the Notes accepted for payment pursuant
to the Offer are not made promptly after the date of acceptance, then the
amendments set forth in Section 2 shall not become operative and shall have no
effect and the Indenture shall be deemed to be amended so that it reads the same
as it did immediately prior to the date hereof.
2. AMENDMENTS.
The Indenture is hereby amended as follows:
(a) Section 1.01 is hereby amended as follows:
(i) the definition of "Asset Sale" is hereby amended by the
following: deleting the phrases "Section 4.15 and/or" and "and not by the
provisions of Section 4.10 hereof" in clause (1), deleting the phrase "and
such cash and Cash Equivalents will be deemed to be cash proceeds of an
Asset Sale for the purpose of calculating and applying Net Proceeds as
described in Section 4.10 hereof" in clause (2)(c) and deleting the text of
clause (5) and replacing such text with the words "[INTENTIONALLY
DELETED]";
(ii) the definition of "Investments" is hereby amended by
deleting the phrase "in clause (c) of Section 4.07 hereof", which appears
twice in such definition and replacing such phrase with "hereunder";
(iii) the definition of "Net Income" is hereby amended by
deleting the phrase "(1) any Restricted Payments permitted to be made under
clause (b)(4) of Section 4.07 hereof and after taking into account any
available tax credits or deductions any tax sharing arrangements and (2)";
(iv) the definition "Officers' Certificate" is hereby amended by
deleting the phrase " except with respect to certificates required to be
furnished by the Company to the Trustee pursuant to Section 4.04 hereof, in
which event `Officers' Certificate' means a certificate signed by the
principal executive officer, principal financial officer or principal
accounting officer of the General Partner, in each case";
(v) the definition "Permitted Tax Loans" is hereby amended by
deleting the phrase "reduced by the amounts distributed under clause
(b)(4)(A) of Section 4.07 hereof with respect to any such sales";
(vi) the definition "Subsidiary Guarantor" is hereby amended by
deleting the phrase "pursuant to Section 4.23 hereof" and replacing such
phrase with "hereunder";
(vii) the definition "Unrestricted Subsidiary" is hereby amended
by deleting the phrases "and was permitted by Section 4.07 hereof", "and,
if such Indebtedness is not permitted to be incurred as of such date under
Section 4.09 hereof, the Company will be in default of such covenant" "(1)
such Indebtedness is permitted under Section 4.09 hereof, calculated on a
pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period, (2)" and " and (3) such designation is
consummated in compliance with Section 4.23 hereof"; and
(viii) the definitions of "Acquired Debt", "Cash Collateral
Account", "Change of Control", "Consolidated Cash Flow", "Consolidated Net
Income", "Continuing Directors", "Credit Facilities", "Disqualified Stock",
"Fixed Charge Coverage Ratio", "Fixed Charges", "Food and Beverage Holding
Company", "Permitted Investments", "Permitted Refinancing Indebtedness",
"Restricted Investment", "Unsecured Indebtedness" and "Weight Average Life
to Maturity" are hereby deleted in their entirety.
(b) Section 1.02 is hereby amended by deleting the following terms in
their entirety: "Affiliate Transaction", "Asset Sale Offer", "Capital
Contribution", "Change of Control Offer", "Change of Control Payment", "Change
of Control Payment Date", "Excess Proceeds", "incur", "Notice", "Offer Amount",
"Offer Period", "Pari Passu Debtholder", "Permitted Debt", "Provision",
"Purchase Date" and "Restricted Payments";
(c) Section 2.06 is hereby amended by deleting the phrase ", 3.09,
4.10, 4.15" in clause (h)(i)(2);
(d) Section 3.03 is hereby amended by deleting the phrase "Subject to
the provisions of Section 3.09 hereof, at" and replacing such phrase with "At";
(e) the text of Section 4.03 is hereby deleted, other than Section
4.03(b) and the last sentence of 4.03(a);
(f) the text of Sections 4.04 (b) and (c) are hereby deleted;
(g) the text of Section 4.15 of the Indenture is hereby deleted in its
entirety and such Section shall be of no further force and effect and the words
"[INTENTIONALLY DELETED]" shall be inserted in place of the deleted text;
(h) the text of Sections 3.09, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.19, 4.20, 4.21, 4.22, 4.23, 4.24, 4.25,
4.26, 6.01(3), 6.01(5), 6.01(6), 6.01(7) and 6.01(8) of the Indenture is hereby
deleted in its entirety and such Sections shall be of no further force and
effect and the words "[INTENTIONALLY DELETED]" shall be inserted, in each case,
in place of the deleted text;
(i) the text of Section 4.18 is hereby deleted, other than the first
and last sentences of such Section;
(j) the text of Section 5.01 is hereby amended by deleting the text of
clauses (c) and (d) and the second-to-last sentence of Section 5.01 and by
replacing ";" with "; and" and by replacing ";" at the end of clause
(b) with ".";
(k) Section 8.04 is hereby amended by deleting the text of clauses (2)
and (3) and replacing such deleted text with the words "[INTENTIONALLY
DELETED]";
(l) Section 9.02 is amended as follows: deleting the phrase
"(including without limitation Section 3.09, 4.10 and 4.15 hereof)" in the first
paragraph thereof, deleting the phrase "except as provided above with respect to
Sections 3.09, 4.10 and 4.15 hereof" in clause (2) and deleting the phrase
"(other than a payment required by Sections 3.09, 4.10 or 4.15 hereof)" in
clause (7);
(m) Section 10.03(a) is hereby amended by deleting the phrase
"; provided, that if such sale, conveyance or disposition constitutes an Asset
Sale, the Issuers will apply the Net Proceeds in accordance with Section 4.10
hereof";
(n) Section 11.04 is hereby amended by deleting the phrase
", including without limitation Section 4.10 hereof" which appears twice in such
Section; and
(o) Section 13.07 is hereby amended by deleting the phrase "Except as
set forth in Section 4.25 hereof, no" and replacing such phrase with "No".
3. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN
AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
4. COUNTERPARTS. This Supplemental Indenture may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same document.
5. EFFECT ON INDENTURE. This Supplemental Indenture shall form a part of
the Indenture for all purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby. Except as expressly
set forth herein, the Indenture is in all respects ratified and confirmed and
all the terms, conditions and provisions thereof shall remain in full force and
effect, including with respect to this Supplemental Indenture.
6. CONFLICT WITH TRUST INDENTURE ACT. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with any provision of the Trust
Indenture Act that may not be so limited, qualified or conflicted with, such
provision of such Act shall control. If any provision of this Supplemental
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the provision of such Act shall be deemed to apply
to the Indenture as so modified or to be excluded by this Supplemental
Indenture, as the case may be.
7. SEPARABILITY CLAUSE. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
8. EFFECT OF HEADINGS. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
9. BENEFITS OF SUPPLEMENTAL INDENTURE, ETC. Nothing in this Supplemental
Indenture, the Indenture or the Notes, express or implied, shall give to any
person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of Notes, any benefit of any legal or equitable
right, remedy or claim under the Indenture, this Supplemental Indenture or the
Notes.
10. SUCCESSOR AND ASSIGNS. All agreement of the Issuers in this
Supplemental Indenture and the Notes shall bind their respective successors.
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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to
be duly executed as of the date first written above.
XXXX X. XXXXXXX HOTELS, L.P.
By: XXXX X. XXXXXXX HOTELS, INC.,
its General Partner
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Chief Financial Officer
XXXX X. XXXXXXX HOTELS FINANCE CORPORATION III
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Chief Financial Officer
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
