Exhibit 4.07
SIXTH AMENDMENT TO
COMPETITIVE ADVANCE AND MULTI-CURRENCY
CREDIT FACILITIES AGREEMENT
This SIXTH AMENDMENT TO COMPETITIVE ADVANCE AND MULTI-CURRENCY CREDIT
FACILITIES AGREEMENT (this "Amendment") is made as of February 2, 2001 by and
among (a) Choice Hotels International, Inc. (the "Borrower"), (b) The Chase
Manhattan Bank ("Chase"), Allfirst Bank, Bank of America, N.A., The Dai-ichi
Kangyo Bank, Ltd., First Union National Bank, The Fuji Bank, Limited, General
Electric Capital Corp., The Industrial Bank of Japan, Limited, New York Branch,
Mellon Bank, N.A., Morgan Guaranty Trust Company of New York, The Sanwa Bank,
Limited, New York Branch, Summit Bank, Suntrust Bank and the other lending
institutions which may become parties to the Credit Agreement (as defined below)
(collectively, the "Lenders") and (c) Chase, as Agent (in such capacity, the
"Agent") for the Lenders.
WHEREAS, the Borrower, the Lenders and the Agent are parties to a
Competitive Advance and Multi-Currency Credit Facilities Agreement dated as of
October 15, 1997, as amended by a First Amendment dated as of February 13, 1998,
a Second Amendment dated as of March 30, 1998, a Third Amendment dated as of
April 9, 1998, a Fourth Amendment dated as of December 16, 1998, and a Fifth
Amendment dated as of March 19, 1999 (as so amended, the "Credit Agreement"),
pursuant to which the Lenders have agreed to make loans to the Borrower;
WHEREAS, the Borrower has requested that the Lenders and the Agent make
certain amendments to the Credit Agreement and the Lenders and the Agent are
willing to amend certain of the provisions of the Credit Agreement upon the
terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and fully intending to be legally bound by this Amendment, the
parties agree to amend the Credit Agreement as follows:
1. Definitions. Capitalized terms used herein without definition shall
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have the meanings assigned to such terms in the Credit Agreement.
2. Amendments to the Credit Agreement. Effective as of the Effective Date
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(as hereinafter defined), the Credit Agreement is hereby amended in the
following respects:
2.1. Section 1.01 of the Credit Agreement is amended by inserting the
following new definition of "Alternative Currency Letter of Credit" immediately
after the definition of "Alternative Currency":
"'Alternative Currency Letter of Credit' shall mean a Letter of Credit
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denominated in an Alternative Currency."
2.2. The definition of "Equivalent Dollar Amount" set forth in Section
1.01 of the Credit Agreement is amended by deleting such definition in its
entirety and substituting the following new definition in place thereof:
"'Equivalent Dollar Amount' shall mean, (a) with respect to an amount
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of any Alternative Currency on any date, the amount of dollars that
may be purchased with such amount of such Alternative Currency at the
Spot Exchange Rate on such date, and (b) with respect to any amount of
dollars on any date, such amount of dollars."
2.3. The definition of "L/C Exposure" set forth in Section 1.01 of the
Credit Agreement is amended by inserting immediately after the words "the sum
of" on the first line thereof the words "the Equivalent Dollar Amount of".
2.4. Section 2.01 of the Credit Agreement is amended by deleting clause
(ii) of the first sentence thereof in its entirety and substituting in place
thereof the following new clause (ii):
"(ii) at no time shall any Loan be made if, immediately after giving
effect thereto and to the application of the proceeds thereof, the sum
of (A) the aggregate Equivalent Dollar Amount of all outstanding
Eurocurrency Loans plus (B) the aggregate undrawn Equivalent Dollar
Amount of all outstanding Alternative Currency Letters of Credit would
exceed the Eurocurrency Sublimit".
2.5. Section 2.02(e) of the Credit Agreement is amended by inserting
immediately after the words "Pro Rata Percentage of" on the fourteenth line
thereof the words "the Equivalent Dollar Amount of".
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2.6. Section 2.20(a) of the Credit Agreement is amended by inserting
immediately after the words "denominated in dollars" on the sixth line thereof
the words "or in an Alternative Currency".
2.7. Section 2.20(b) of the Credit Agreement is amended by inserting
immediately before the words "the amount of such Letter of Credit" on the
twelfth line thereof the words "whether such Letter of Credit is to be
denominated in dollars or an Alternative Currency,".
2.8. Section 2.20(b) of the Credit Agreement is further amended by
deleting the amount "$10,000,00" in clause (A) of the second to last sentence
thereof and substituting in place thereof the amount "$20,000,000".
2.9. Section 2.20(b) of the Credit Agreement is further amended by
inserting at the end of the second to last sentence thereof (immediately before
the period) the words "and (C) the sum of (A) the aggregate Equivalent Dollar
Amount of all outstanding Eurocurrency Loans plus (B) the aggregate undrawn
Equivalent Dollar Amount of all outstanding Alternative Currency Letters of
Credit shall not exceed the Eurocurrency Sublimit".
2.10. Section 2.20(d) of the Credit Agreement is amended by inserting
immediately after the words "Pro Rata Percentage of" on the twelfth line thereof
the words "the Equivalent Dollar Amount of".
2.11. Section 2.20(e) of the Credit Agreement is hereby amended by
inserting immediately after the first sentence thereof the following new
sentence:
"Notwithstanding anything contained herein to the contrary, however,
in the case of any Alternative Currency Letter of Credit, the Borrower
shall reimburse any drawing thereunder in the Alternative Currency in which
such Alternative Currency Letter of Credit is denominated; provided,
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however, that if (x) any such drawing is made at a time when there exists
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an Event of Default or (y) the Borrower shall not have notified the Agent
and the Issuing Bank prior to 11 a.m. (New York time) at least two (2)
Business Days immediately prior to such drawing that the Borrower intends
to reimburse the Issuing Bank in the applicable Alternative Currency, then,
in either such case, such reimbursement shall instead be made by payment in
dollars of the Equivalent Dollar Amount of such drawing and in immediately
available funds."
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2.12. Section 2.21(a) of the Credit Agreement is amended by inserting
immediately after the words "each Eurocurrency Borrowing" on the fifth line
thereof the words "and each undrawn Alternative Currency Letter of Credit".
2.13. Section 2.21(b) of the Credit Agreement is amended by inserting
immediately after the words "repaid on such date)" on the fifth line thereof the
words "and the undrawn Equivalent Dollar Amount of each outstanding Alternative
Currency Letter of Credit".
2.14. Section 2.21(c) of the Credit Agreement is amended by deleting the
first sentence thereof in its entirety and substituting the following new
sentence in place thereof:
"If on any Reset Date with respect to Eurocurrency Loans and
Alternative Currency Letters of Credit outstanding the sum of (A) the
aggregate Equivalent Dollar Amount of all outstanding Eurocurrency Loans
plus (B) the aggregate undrawn Equivalent Dollar Amount of all outstanding
Alternative Currency Letters of Credit exceeds 110% of the Eurocurrency
Sublimit, the Borrower shall on such date prepay Eurocurrency Loans in an
aggregate amount such that, after giving effect thereto, the sum of (A) the
aggregate Equivalent Dollar Amount of all such outstanding Eurocurrency
Loans plus (B) the aggregate undrawn Equivalent Dollar Amount of all
outstanding Alternative Currency Letters of Credit shall be equal to or
less than the Eurocurrency Sublimit."
2.15. Section 6.13 of the Credit Agreement is amended by deleting such
Section in its entirety and substituting the following in place thereof:
"SECTION 6.13. [Intentionally Omitted.]"
3. Previously Issued Letter of Credit. Each of the Borrower, the Lenders,
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the Agent and the Issuing Bank hereby agrees that, from and after the Effective
Date, the standby letter of credit issued by Chase at the request of the
Borrower on January 22, 2001 in the face amount of (Pounds)4,000,000 shall for
all purposes become and thereafter be a Letter of Credit under the Credit
Agreement.
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4. Representations and Warranties. The Borrower hereby represents and
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warrants as follows:
4.1 Representations in Loan Documents. Each of the representations
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and warranties made by or on behalf of the Borrower in any of the Loan Documents
was true and correct when made and is true and correct on and as of the
Effective Date (except to the extent that such representations and warranties
relate expressly to an earlier date) with the same full force and effect as if
each of such representations and warranties had been made by the Borrower on the
Effective Date and in this Amendment.
4.2. Defaults. No Default or Event of Default exists on the
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Effective Date.
4.3. Authorization; No Conflicts; Etc. The execution, delivery and
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performance by the Borrower of this Amendment (a) have been duly authorized by
all requisite action, (b) will not (i) violate (x) any provision of law,
statute, rule or regulation, or of the certificate or articles of incorporation,
bylaws or other constitutive documents of the Borrower or any Subsidiary, (y)
any order of any Governmental Authority, or (z) any provision of any indenture,
agreement or other instrument to which the Borrower or any Subsidiary is a party
or by which any of them or any of their property is or may be bound, (ii) be in
conflict with, or result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under any such indenture, agreement for
borrowed money or other agreement or instrument or (iii) result in the creation
or imposition of any Lien upon or with respect to any property or assets now
owned or hereafter acquired by the Borrower.
4.4. Binding Effect of Documents. This Amendment has been duly
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executed and delivered by the Borrower and is in full force and effect as of the
Effective Date, and the respective agreements and obligations of the Borrower
contained herein and therein constitute the legal, valid and binding obligations
of the Borrower enforceable against it in accordance with their respective
terms, subject only to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of
creditors' rights and to the fact that the availability of the remedy of
specific performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be brought.
5. Provisions Of General Application.
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5.1. No Other Changes. Except as otherwise expressly provided or
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contemplated by this Amendment, all of the terms, conditions
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and provisions of the Credit Agreement and the other Loan Documents remain
unaltered. The Credit Agreement and this Amendment shall be read and construed
as one agreement. The making of the amendments in this Amendment does not imply
any obligation or agreement by the Agent or any Lender to make any other
amendment, waiver, modification or consent as to any matter on any subsequent
occasion.
5.2. Governing Law. This Amendment shall for all purposes be
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construed in accordance with and governed by the laws of the State of New York.
5.3. Assignment. This Amendment shall be binding upon and inure to
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the benefit of each of the parties hereto and their respective permitted
successors and assigns.
5.4. Counterparts. This Amendment may be executed in any number of
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counterparts, but all such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereto.
5.5. Expenses. The Borrower agrees to reimburse the Agent for its
out-of-pocket expenses in connection with this Amendment, including the
reasonable fees and expenses of Agent's counsel.
5.6. Conditions Precedent. The effectiveness of this Amendment is
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subject to satisfaction of the following conditions precedent (such date on
which such conditions precedent have been satisfied being referred to herein as
the "Effective Date"):
(i) execution and delivery to the Agent by the Borrower, the
Guarantor, and the Required Lenders of this Amendment;
(ii) all legal matters relating to this Amendment shall be
satisfactory to the Required Lenders, the Agent and the Agent's counsel; and
(iii) receipt by the Agent of (A) a certificate from an officer of
the Borrower as to organizational documents, authorizing resolutions and
incumbency of officers of each of the Borrower and the Guarantor, in form and
substance satisfactory to the Agent, and (B) such other documents and
certificates as the Agent may reasonably request.
[Signature pages to follow]
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IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Amendment as of the date first set forth above.
CHOICE HOTELS INTERNATIONAL, INC.
By:
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Name:
Title:
THE CHASE MANHATTAN BANK, individually and as
Issuing Bank and Agent
By:
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Name:
Title:
ALLFIRST BANK
By:
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Name:
Title:
BANK OF AMERICA, N. A.
By:
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Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:
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Name:
Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
Title:
THE FUJI BANK, LIMITED
By:
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Name:
Title:
GENERAL ELECTRIC CAPITAL CORP.
By:
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Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW YORK
BRANCH
By:
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Name:
Title:
MELLON BANK, N.A.
By:
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Name:
Title:
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MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:
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Name:
Title:
THE SANWA BANK, LIMITED, NEW YORK BRANCH
By:
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Name:
Title:
SUMMIT BANK
By:
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Name:
Title:
SUNTRUST BANK
By:
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Name:
Title:
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The undersigned Guarantor hereby acknowledges the foregoing Amendment and
reaffirms its guaranty of the Obligations under the Credit Agreement and the
other Loan Documents, each as amended hereby or in connection herewith, in
accordance with the Guarantee Agreement.
CHOICE HOTELS EUROPE, INC.
By:
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Name:
Title:
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