Exhibit 10.18.3
THIRD AMENDMENT AND CONSENT
THIRD AMENDMENT AND CONSENT (the "Third Amendment"), dated as of
December 20, 2002, among FELCOR LODGING TRUST INCORPORATED (f/k/a FelCor Suite
Hotels, Inc.), a Maryland corporation ("FelCor"), FELCOR LODGING LIMITED
PARTNERSHIP (f/k/a FelCor Suites Limited Partnership), a Delaware limited
partnership ("FelCor LP" and collectively with FelCor, the "US Borrower"),
FELCOR CANADA CO., a Nova Scotia unlimited liability company (the "Canadian
Borrower" and collectively with the US Borrower, the "Borrower"), the Lenders
from time to time party thereto, DEUTSCHE Bank Trust Company AMERICAS (f/k/a
Bankers Trust Company), as Syndication Agent (the "Syndication Agent") and
JPMORGAN CHASE BANK (f/k/a The Chase Manhattan Bank) ("JPMCB") and J.P. MORGAN
Bank Canada (f/k/a The Chase Manhattan Bank of Canada) ("JPM Canada") as
Administrative Agent for the Lenders. Unless otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement referred to
below are used herein as so defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, the Syndication Agent and the
Administrative Agent are party to the Seventh Amended and Restated Credit
Agreement, dated as of July 26, 2001 (as the same has been amended, modified or
supplemented to, but not including, the date hereof, the "Credit Agreement");
and
WHEREAS, subject to the terms and conditions set forth below, the
parties hereto wish to amend certain provisions the Credit Agreement as provided
herein;
NOW, THEREFORE, it is agreed;
I. Consent
1. The US Borrower hereby agrees that for the purposes of Sections
2.6(e), 2.6(f), 2.6(g), 7.4(b), 7.5(d) and 7.17 of the Credit Agreement, for the
period from the Third Amendment Effective Date until the delivery of the
Compliance Certificate pursuant to Section 6.11(d) of the Credit Agreement for
the Fiscal Quarter ending March 31, 2003, the US Borrower's Total Indebtedness
for borrowed money shall be deemed to be greater than 65% of Total Value.
II. Amendments
1. Section 1.1 of the Credit Agreement is hereby amended by deleting
the definitions of "Applicable Margin" and "Status" and inserting the following
new definitions in lieu thereof:
"Applicable Margin" means, with respect to each Revolving
Credit Loan, the applicable percentage per annum set forth below based
upon (i) with respect to Level I through IV Status, the Status then in
effect and (ii) with respect to Level V through XIII Status, the Status
in effect on the most recent Applicable Margin Reset Date, it being
understood that the Applicable Margin for (i) Base Rate Loans, Swing
Advances and Canadian Prime Rate Loans shall be the percentage set
forth under the column "Base Rate/Canadian Prime Rate Loans", (ii)
Eurodollar Rate Loans shall be the percentage set forth under the
column "Eurodollar Rate Loans", and (iii) the Commitment Fee shall be
the percentage set forth under the column "Commitment Fee":
Base Rate/Canadian
Prime Rate Eurodollar Rate Commitment
Loans Loans Fee
----- ----- ---
Level I Status 0.0% .875% 0.125%
Level II Status 0.0% 1.000% 0.150%
Level III Status 0.0% 1.125% 0.150%
Level IV Status 0.0% 1.250% 0.200%
Level V Status 0.0% 1.375% 0.200%
Level VI Status 0.250% 1.750% 0.250%
Level VII Status 0.375% 1.875% 0.250%
Level VIII Status 0.500% 2.000% 0.300%
Level IX Status 0.625% 2.125% 0.375%
Level X Status 1.000% 2.500% 0.500%
Level XI Status 1.375% 2.875% 0.500%
Level XII Status 1.750% 3.250% 0.500%
Level XIII Status 2.375% 3.875% 0.500%
"Status" means the existence of Level I Status, Level II
Status, Level III Status, Level IV Status, Level V Status, Level VI Status,
Level VII Status, Level VIII Status, Level IX Status, Level X Status, Level XI
Status, Level XII Status or Level XIII Status, as the case may be.
As used in this definition:
"Level I Status" exists on any date if, on such date, either
US Borrower has a long-term senior unsecured actual debt rating of A-
or better by S&P and A3 or better by Moody's Investor Service, Inc.
("Moody's");
"Level II Status" exists on any date if, on such date, either
US Borrower has a long-term senior unsecured actual debt rating of BBB+
by S&P and Baa1 by Moody's;
"Level III Status" exists on any date if, on such date, either
US Borrower has a long-term senior unsecured actual debt rating of BBB
by S&P and Baa2 by Moody's;
"Level IV Status" exists on any date if, on such date, either
US Borrower has a long-term senior unsecured debt rating of BBB- by S&P
and Baa3 by Moody's;
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"Level V Status" exists on any date if, on such date (y) none
of Level I Status through Level IV Status exists and (z) the Leverage
Ratio is less than 25%;
"Level VI Status" exists on any date if, on such date (y) none
of Level I Status through Level IV Status exists and (z) the Leverage
Ratio is equal to or greater than 25% but less than 35%;
"Level VII Status" exists on any date if, on such date (y)
none of Level I Status through Level IV Status exists and (z) the
Leverage Ratio is equal to or greater than 35% but less than 40%;
"Level VIII Status" exists on any date if, on such date (y)
none of Level I Status through Level IV Status exists and (z) the
Leverage Ratio is equal to or greater than 40% but less than 45%;
"Level IX Status" exists on any date if, on such date (y) none
of the Level I Status through Level IV Status exists and (z) the
Leverage Ratio is equal to or greater than 45% but less than 50%;
"Level X Status" exists on any date if, on such date (y) none
of Level I Status through Level IV Status exists and (z) the Leverage
Ratio is equal to or greater than 50% but less than 55%;
"Level XI Status" exists on any date if, on such date (y) none
of Level I Status through Level IV Status exists and (z) the Leverage
Ratio is equal to or greater than 55% but less than 60%.
"Level XII Status" exists on any date if, on such date (y)
none of Level I Status through Level IV Status exists and (z) the
Leverage Ratio is equal to or greater than 60% but less than 65%.
"Level XIII Status" exists on any date if, on such date (y)
none of Level I Status through Level IV Status exists and (z) the
Leverage Ratio is equal to or greater than 65%.
If S&P and/or Moody's shall cease to issue ratings of debt
securities of real estate investment trusts generally, then the
Administrative Agent and the US Borrower shall negotiate in good faith
to agree upon a substitute rating agency or agencies (and to correlate
the system of ratings of each substitute rating agency with that of the
rating agency for which it is substituting) and (a) until such
substitute rating agency or agencies are agreed upon, Status shall be
determined on the basis of the rating assigned by the other rating
agency (or, if both S&P and Moody's shall have so ceased to issue such
ratings, on the basis of the Status in effect immediately prior
thereto) and (b) after such substitute rating agency or agencies are
agreed upon, Status shall be determined on the basis of the rating
assigned by the other rating agency and such substitute rating agency
or the two substitute rating agencies, as the case may be. If the long
term senior unsecured actual debt ratings of either US Borrower by S&P
and Moody's are not equivalent, the higher rating will apply for the
purposes of determining Status. If the long term senior unsecured
actual debt ratings of either US Borrower by S&P and Moody's are two or
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more Levels apart, the rating one Level below the higher rating will
apply for the purposes of determining Status."
2. The definition of "Specified Investment Amount" appearing in Section
1.1 of the Credit Agreement is hereby amended to read in its entirety as
follows:
"Specified Investment Amount" shall mean (A) the sum of (i)
$20,000,000, (ii) the aggregate amount of net cash proceeds received
from any Asset Sale consummated during the period from the First
Amendment Effective Date to September 30, 2004, less the aggregate
amount of Net Cash Proceeds received from any such Asset Sale
consummated during such period that (x) have been added to the
Specified Acquisition Amount by the US Borrower pursuant to Section
6.12(l) and (y) are required to be applied to repay outstanding
Revolving Credit Loans pursuant to Section 2.6(e) and (iii) the
aggregate amount of the Net Cash Proceeds received from the sale or
issuance of equity by FelCor LP during the period from the First
Amendment Effective Date to September 30, 2004, less the aggregate
amount of net cash proceeds received from such sale or issuance of
equity during such period that (x) have been added by the US Borrower
pursuant to Section 6.12(m) to the Specified Acquisition Amount and (y)
are required to be applied to repay outstanding Revolving Credit Loans
pursuant to Section 2.6(f), less (B) the aggregate amount of any
investment in any Joint Enterprise during the period from First
Amendment Effective Date through September 30, 2004.
3. The definition of "Total Value" appearing in Section 1.1 of the
Credit Agreement is hereby amended by (i) inserting the word "plus" immediately
following the semicolon at the end of clause (E) of said definition and (ii)
inserting the following new clause (F) immediately following clause (E) thereof:
"(F) the US Borrower's Pro Rata Share of (i) the cost of the
Margate Tower located in Myrtle Beach, South Carolina and (ii) any
other new development, in each case, to the extent not otherwise
included in (A) through (E) above;".
4. Section 1.1 of the Credit Agreement is hereby further amended by
inserting in the appropriate alphabetical order the following new definitions:
"Available Free Cash Flow" shall mean the Free Cash Flow for
any Fiscal Quarter, less amounts of Free Cash Flow permitted to be used
to make Restricted Payments pursuant to Section 7.4 and Discretionary
Capital Expenditures pursuant to Section 7.17 during such Fiscal
Quarter.
"Net Cash Proceeds" shall mean (a) with respect to any Asset
Sale, the proceeds in cash and Cash Equivalents (including cash or Cash
Equivalents paid in respect of notes or other debt securities
constituting proceeds but only when and as paid and excluding therefrom
any interest component thereof) resulting therefrom net of (i) expenses
(including legal, investment banking and accounting fees) incurred in
connection therewith (including payment of principal of, and premium
and interest on, Indebtedness (other than the Loans) which is repaid
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under the terms thereof as a result of such Asset Sale) and (ii) taxes,
levies, imposts, duties, fees, assessments or other similar charges
paid solely as a result of such Asset Sale; and (b) in connection with
any issuance or sale of equity of the US Borrower or its Subsidiaries,
the cash proceeds received from such issuance, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other reasonable fees and expenses associated
therewith.
"Specified Acquisition Amount" shall mean (A) the sum of (i)
$50,000,000, (ii) the aggregate amount of net cash proceeds received
from any Asset Sale consummated during the period from the First
Amendment Effective Date to September 30, 2004, less the aggregate
amount of net cash proceeds received from any such Asset Sale
consummated during such period that (x) have been added to the
Specified Investment Amount by the US Borrower pursuant to Section
6.12(l) and (y) are required to be applied to repay outstanding
Revolving Credit Loans pursuant to Section 2.6(e) and (iii) the
aggregate amount of the net cash proceeds received from the sale or
issuance of equity by FelCor LP during the period from the First
Amendment Effective Date to September 30, 2004, less the aggregate
amount of net cash proceeds received from such sale or issuance of
equity during such period that (x) have been added by the US Borrower
pursuant to Section 6.12(m) to the Specified Investment Amount and (y)
are required to be applied to repay outstanding Revolving Credit Loans
pursuant to Section 2.6(f) less (B) the aggregate amount of any
acquisition of existing Hotel properties during the period from First
Amendment Effective Date through September 30, 2004.
"Third Amendment" shall mean the Third Amendment, dated as of
December 20, 2002, among the Borrowers, the Lenders party thereto, the
Syndication Agent and the Administrative Agent.
"Third Amendment Effective Date" shall have the meaning
provided in the Third Amendment.
5. Section 2.22 of the Credit Agreement is hereby amended by (i)
redesignating clause "(iii)" in clause (b) thereof as clause "(iv)" and (ii)
inserting the new clause (iii) immediately following clause (b)(ii) appearing
therein "the US Borrower's Total Indebtedness for borrowed money was equal to or
less than 55% of Total Value at all times on, and after, September 30, 2005
through, and including, the Extension Effective Date".
6. Section 2.6 of the Credit Agreement is hereby amended by inserting
the following new clauses (e), (f) and (g) immediately following clause (d)
thereof:
"(e) In addition to any other mandatory prepayments required
pursuant to this Section 2.6, if on any date the US Borrower or any of
its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale
and (i) the US Borrower's Total Indebtedness for borrowed money is
equal to or exceeds 65% of Total Value (before to giving effect to the
application of the proceeds thereof) and (ii) the aggregate principal
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amount of Revolving Credit Loans outstanding at the time of the
application of the proceeds thereof is greater than $50,000,000, then,
unless the proceeds from such Asset Sale are required to be reinvested
in accordance with any Management Agreement governing the sale of such
asset, a prepayment of an amount equal to lesser of (x) 100% of such
Net Cash Proceeds (or the portion thereof not required to be reinvested
pursuant to such Management Agreement) and (y) the amount necessary to
reduce the aggregate outstanding principal amount of Revolving Credit
Loans to an amount that is equal to $50,000,000 shall be applied within
five Business Days following such date.
(f) In addition to any other mandatory prepayments required
pursuant to this Section 2.6, if on any date the US Borrower or any of
its Subsidiaries shall receive Net Cash Proceeds from the sale or
issuance of equity by the US Borrower or its Subsidiaries and, if at
the time of such issuance (i) the US Borrower's Total Indebtedness for
borrowed money is equal to or exceeds 65% of Total Value (before to
giving effect to the application of the proceeds thereof) and (ii) the
aggregate principal amount of Revolving Credit Loans outstanding at the
time of the application of the proceeds thereof is greater than
$50,000,000, then, a prepayment of an amount equal to the lesser of (x)
100% of such Net Cash Proceeds and (y) the amount necessary to reduce
the aggregate outstanding principal amount of Revolving Credit Loans to
an amount that is equal to $50,000,000 shall be applied within five
Business Days following such date.
(g) In addition to any other mandatory prepayments required
pursuant to this Section 2.6, 45 days after the last day of each Fiscal
Quarter of the US Borrower, beginning with the Fiscal Quarter ending
December 31, 2002, if the US Borrower's Total Indebtedness for borrowed
money is equal to or exceeds 65% of Total Value as of the last day of
such Fiscal Quarter, then a prepayment in an amount equal to the lesser
of (x) 100% of Available Free Cash Flow for such Fiscal Quarter and (y)
the amount necessary to reduce the aggregate outstanding principal
amount of Revolving Credit Loans to an amount that is equal to
$50,000,000, shall be applied."
7. Section 5.1 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"5.1. Unsecured Interest Expense Coverage. The US Borrower
shall maintain at the end of each Fiscal Quarter, commencing with the
Fiscal Quarter ending on June 30, 2000, a ratio of (a) Unencumbered NOI
to (b) Unsecured Interest Expense, in each case determined on the basis
of the four (4) Fiscal Quarters ending on the date of determination, of
not less than 1.90:1.0, provided that, the minimum ratio set forth
above shall be (i) 1.45:1.0 for the Fiscal Quarters ending December 31,
2002 through March 31, 2004, (ii) 1.50:1.0 for the Fiscal Quarter
ending June 30, 2004 and (iii) 1.60:1.0 for the Fiscal Quarter ending
on September 30, 2004."
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8. Section 5.2 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"5.2. Fixed Charge Coverage Ratio. The US Borrower shall
maintain at the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ending on June 30, 2000, a ratio of (a) Adjusted EDITDA to (b)
Fixed Charges, in each case determined on the basis of the four (4)
Fiscal Quarters ending on the date of determination, of not less than
1.50:1.0, provided that, the minimum ratio set forth above shall be (i)
1.10:1.0 for the Fiscal Quarters ending December 31, 2002 through March
31, 2004, (ii) 1.15:1.0 for the Fiscal Quarter ending June 30, 2004 and
(iii) 1.20:1.0 for the Fiscal Quarter ending September 30, 2004."
9. Section 5.4 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"5.4. Limitations on Total Indebtedness. The US Borrower shall
not, during each Fiscal Quarter on a consolidated basis, permit the
Total Indebtedness (including, without limitation, the Obligations and
all Capitalized Lease Obligations) of the US Borrower for borrowed
money to exceed (i) 70% of Total Value from and including December 31,
2002 through March 31, 2004, (ii) 67.5% of Total Value from and
including April 1, 2004 through September 30, 2004, (iii) 55% of Total
Value from and including October 1, 2005 through September 30, 2006 and
(iii) 60% of Total Value at all other times."
10. Section 5.5 of the Credit Agreement is hereby amended to read in
its entirety as follows:
"5.5. Limitations on Total Secured Indebtedness. The US
Borrower shall not, during each Fiscal Quarter on a consolidated basis,
permit the Total Secured Indebtedness (including, without limitation,
secured Obligations and Capitalized Lease Obligations) of the US
Borrower, to exceed 30% of Total Value, provided that, Total Secured
Indebtedness shall not exceed (i) 32% of Total Value from December 31,
2002 through March 31, 2004 and (B) 31% of Total Value from April 1,
2004 through September 30, 2004."
11. Section 6.12 of the Credit Agreement is hereby amended by deleting
(l) and (m) and inserting the following new clauses (l) and (m) in lieu thereof:
"(l) promptly, and in any event within ten days, after the
designation by the US Borrower (which such designation shall be in the
US Borrower's sole discretion), written notice to the Administrative
Agent of the designation of the amount of Net Cash Proceeds received
from any Asset Sales during the period from the First Amendment
Effective Date to September 30, 2004, as a Specified Acquisition Amount
or a Specified Investment Amount; and
(m) promptly, and in any event within ten days, after the
designation by the US Borrower (which such designation shall be in the
US Borrower's sole discretion), written notice to the Administrative
Agent of the designation of the amount of Net Cash Proceeds received
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from any equity issuances during the period from the First Amendment
Effective Date to September 30, 2004, as a Specified Acquisition Amount
or a Specified Investment Amount."
12. Section 7.4(b) of the Credit Agreement is hereby amended to read in
its entirety as follows:
"(b) Notwithstanding anything to the contrary contained in
clause (a) of this Section 7.4, other than Restricted Payments made in
accordance with clauses (a)(i) and (a)(ii) of this Section 7.4, the US
Borrower shall not make Restricted Payments under such clause (a)
during any Fiscal Quarter ending from and including December 31, 2002
through September 30, 2004, at any time that the US Borrower's Total
Indebtedness for borrowed money is equal to or exceeds 55% of Total
Value, except that (x) to the extent that the US Borrower's Total
Indebtedness for borrowed money is equal to or exceeds 55% of Total
Value but is less than 65% of Total Value, at the time of and after
giving effect to such Restricted Payments, when added to the Restricted
Payments made during the immediately preceding three consecutive Fiscal
Quarters, in an amount equal to the lesser of (I) 85% of the
consolidated Adjusted Funds From Operations and (II) 85% of the Free
Cash Flow of the US Borrower, in each case for the immediately
preceding four consecutive Fiscal Quarters and (y) to the extent that
the US Borrower's Total Indebtedness for borrowed money is equal to or
exceeds 65% of Total Value at the time of and after giving effect to
any such Restricted Payment, when added to the Restricted Payments made
during the immediately preceding three consecutive Fiscal Quarters, in
an amount equal to the lesser of (I) 85% of the consolidated Adjusted
Funds From Operations and (II) 75% of the Free Cash Flow of the US
Borrower, in each case for the immediately preceding four consecutive
Fiscal Quarters; provided that notwithstanding anything to the contrary
in this Section 7.4(b), if the outstanding principal amount of
Revolving Credit Loans is equal to or less than $50,000,000 as of the
end of any Fiscal Quarter, the US Borrower shall be permitted to make
Restricted Payments, when added to the Restricted Payments made during
the immediately preceding three consecutive Fiscal Quarters, in an
amount equal to 100% of Free Cash Flow for the immediately preceding
four consecutive Fiscal Quarters; provided, further, that
notwithstanding the foregoing limitation on Restricted Payments, the US
Borrower shall be permitted to declare or authorize the payment of (I)
current dividends on its preferred stock during any Fiscal Quarter in
an aggregate amount not to exceed 100% of the Free Cash Flow of the US
Borrower for such Fiscal Quarter (less the amount of any Restricted
Payments made during such Fiscal Quarter pursuant to the immediately
preceding proviso) and (II) current dividends on its common stock and
units during the Fiscal Quarters ending December 31, 2002, March 31,
2003 and June 30, 2003, in an amount equal to $0.15 multiplied by the
number of shares and units of the US Borrower's common stock and/or
units outstanding as of the record date declared by the US Borrower's
Board of Directors for such fiscal quarter."
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13. Section 7.5(d) of the Credit Agreement is hereby amended to read in
its entirety as follows:
"(d) Notwithstanding anything to the contrary contained in
this Agreement, for the period from the Third Amendment Effective Date
through September 30, 2004, the US Borrower may acquire existing Hotel
properties, so long as (I) the Total Indebtedness for borrowed money of
the US Borrower does not exceed 60% of Total Value both before and
after giving effect to such acquisition and (II) at least 10 Business
Days prior to the consummation of any such acquisition the US Borrower
shall deliver to the Administrative Agent a certificate of the US
Borrower's chief financial officer or treasurer certifying (and showing
calculations in reasonable detail) that the US Borrower would have been
in compliance with the financial covenants set forth in Sections 5.1,
5.2, 5.3, 5.4, 5.5, 5.6 and 5.7, as amended hereby, for the most
recently ended four (4) Fiscal Quarters prior to the date of such
acquisition, in each case with such financial covenants to be
determined on a pro forma basis as if such acquisition had been
consummated on the first day of such four (4) Fiscal Quarter period
(and assuming that any Indebtedness incurred, issued, assumed or repaid
in connection therewith had been incurred, issued, assumed or repaid on
the first day of such four (4) Fiscal Quarter period); provided that to
the extent that the US Borrower's Total Indebtedness for borrowed money
exceeds 60% of Total Value but is less than or equal to 65% of Total
Value before such acquisition, the US Borrower may acquire existing
Hotel properties at such time, so long as (I) the US Borrower's Total
Indebtedness for borrowed money as a percentage of Total Value after
giving effect to such acquisition is equal to or less than the US
Borrower's Total Indebtedness for borrowed money as a percentage of
Total Value immediately prior to such acquisition, (II) at least 10
Business Days prior to the consummation of any such acquisition, the US
Borrower shall deliver to the Administrative Agent a certificate of the
US Borrower's chief financial officer or treasurer certifying (and
showing calculations in reasonable detail) that the US Borrower would
have been in compliance with the financial covenants set forth in
Sections 5.1, 5.2, 5.3, 5.4, 5.5, 5.6 and 5.7, as amended hereby, for
the most recently ended (4) Fiscal Quarters prior to the date of such
acquisition, in each case with such financial covenants to be
determined on a pro forma basis as if such acquisition had been
consummated on the first day of such (4) Fiscal Quarter period (and
assuming that any Indebtedness incurred, issued, assumed or repaid in
connection therewith had been incurred, issued, assumed or repaid on
the first day of such four (4) Fiscal Quarter period); provided
further, that to the extent that the US Borrower's Total Indebtedness
for borrowed money exceeds 65% of Total Value either at the time of or
after giving effect to such acquisition, the US Borrower may only
acquire existing Hotel properties (I) in an aggregate amount not to
exceed the Specified Acquisition Amount at the time of such acquisition
and (II) if the US Borrower's Total Indebtedness for borrowed money as
a percentage of Total Value after giving effect to such acquisition is
equal to or less than the US Borrower's Total Indebtedness for borrowed
money as a percentage of Total Value immediately prior to such
acquisition."
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14. Section 7.6(c) of the Credit Agreement is hereby amended by (i)
deleting the date "December 31, 2002" and inserting the text "December 31, 2004,
at any time the US Borrower's Total Indebtedness for borrower money is greater
than 60% of Total Value" in lieu thereof and (ii) deleting the text "$10,000,000
in a Holiday Inn prototype to be located in Denver, Colorado" appearing in said
Section and inserting the text "$65,000,000 in up to three Holiday Inn or
Embassy Suites prototypes (or any combination thereof) owned by the Borrower or
its Subsidiaries" in lieu thereof.
15. Section 7.13(a) of the Credit Agreement is hereby amended by
inserting the text ", it being understood and agreed, for the purposes of this
Section 7.13, that in the case of a sale by the US Borrower or any of its
Subsidiaries of less than 100% of its interest in an existing Hotel property,
the interest retained in such existing Hotel property by the US Borrower or such
Subsidiary shall not be considered an investment in a Joint Enterprise"
immediately preceding the period at the end of said Section.
16. Section 7.17 of the Credit Agreement is hereby amended to read in
its entirety as follows:
"7.17. Limitation on Capital Expenditures. At any time, if the
US Borrower's Total Indebtedness for borrowed money is equal to or
exceeds 55% of Total Value, the US Borrower shall not, and shall not
permit any of its Subsidiaries or Eligible Joint Ventures to, incur any
Discretionary Capital Expenditures, except that during any consecutive
four (4) Fiscal Quarter period, beginning with the four (4) consecutive
Fiscal Quarters ending June 30, 2002, the US Borrower and its
Subsidiaries and Eligible Joint Ventures may make Discretionary Capital
Expenditures during such consecutive four (4) Fiscal Quarter period for
the expansion or renovation of Hotels in a aggregate amount not to
exceed (x) 4.5% of Consolidated Total Revenue during such four (4)
consecutive Fiscal Quarter period if the US Borrower's Total
Indebtedness for borrowed money is equal to or exceeds 55% of Total
Value but is less than 65% of Total Value on the date of such proposed
Discretionary Capital Expenditure and (y) 2% of Consolidated Total
Revenue during such four (4) consecutive Fiscal Quarter period if the
US Borrower's Total Indebtedness for borrowed money is equal to or
exceeds 65% of Total Value on the date such of such proposed
Discretionary Capital Expenditure, it being understood and agreed that
notwithstanding anything to the contrary contained in this Section
7.17, so long as there as no Default or Event of Default has occurred
and is continuing, the US Borrower and its Subsidiaries shall be
permitted to make up to $15,000,000 in the aggregate of Discretionary
Capital Expenditures in connection with the Wyndham Myrtle Beach
located in Myrtle Beach, South Carolina and the SouthPark Suites
located in Charlotte, North Carolina."
III. Miscellaneous Provisions
1. In order to induce the Lenders to enter into this Third Amendment,
each Borrower hereby represents and warrants on behalf of itself and its
respective Subsidiaries that (i) the representations and warranties of contained
in Article IV of the Credit Agreement are true and correct in all material
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respects on and as of the Third Amendment Effective Date (as defined below)
(except with respect to any representations and warranties limited by their
terms to a specific date, which shall be true and correct in all material
respects as of such date), and (ii) there exists no Default or Event of Default
under the Credit Agreement on the Third Amendment Effective Date, in each case
both before and after giving effect to this Third Amendment.
2. The US Borrower hereby agrees to pay each Lender which delivers an
executed copy of this Third Amendment (by hard copy or facsimile) to the
Administrative Agent by no later than 12:00 p.m. (New York time) on December 20,
2002, a fee (the "Amendment Fee") in an amount equal to 0.10% of such Lender's
Revolving Credit Commitment (after giving effect to this Third Amendment), which
Amendment Fee shall be due and payable on the first Business Day following the
date on which the Super Majority Lenders shall have executed and delivered this
Third Amendment.
3. This Third Amendment is limited as specified and shall not
constitute an amendment, modification, acceptance or waiver of any other
provision of the Credit Agreement or any other Loan Document.
4. THIS THIRD AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Third Amendment shall become effective on the date (the "Third
Amendment Effective Date") when (i) each Borrower and the Super Majority Lenders
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of telecopier) the same
to the Administrative Agent and (ii) the US Borrower has terminated Revolving
Credit Commitments in an aggregate amount equal to at least $315,000,000 in
accordance with Section 2.4 of the Credit Agreement.
6. From and after the Third Amendment Effective Date, all references in
the Credit Agreement and in the other Loan Documents shall be deemed to be
referenced to the Credit Agreement as modified hereby.
* * *
11
FELCOR LODGING TRUST INCORPORATED
By: /s/ Andrew J. Welch
---------------------------------------
Name: Andrew J. Welch
Title: Senior Vice President
FELCOR LODGING LIMITED PARTNERSHIP
By: FelCor Lodging Trust Incorporated,
its general partner
By: /s/ Andrew J. Welch
---------------------------------------
Name: Andrew J. Welch
Title: Senior Vice President
FELCOR CANADA CO.
By: /s/ Andrew J. Welch
---------------------------------------
Name: Andrew J. Welch
Title: Senior Vice President
JPMORGAN CHASE BANK (f/k/a The Chase
Manhattan Bank), Individually and as
Administrative Agent
By: /s/ Charles E. Hoagland
----------------------------------------
Name: Charles E. Hoagland
Title: Vice President
J.P. MORGAN BANK CANADA (f/k/a The
Chase Manhattan Bank of Canada), as
Administrative Agent
By: /s/ Christine Chan
----------------------------------------
Name: Christine Chan
Title: Vice President
JPMORGAN CHASE BANK, TORONTO
BRANCH (f/k/a The Chase Manhattan
Bank, Toronto Branch)
By: /s/ Christine Chan
----------------------------------------
Name: Christine Chan
Title: Vice President
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