EXHIBIT 10.19.4
FOURTH AMENDMENT
FOURTH AMENDMENT (the "Fourth Amendment"), dated as of June 25, 2003,
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. Amendments
1. Section 1.1 of the Credit Agreement is hereby amended by
deleting the definitions of "Adjusted EBITDA," "Applicable Margin,"
"Consolidated Total Revenue," "Status" and "Total Indebtedness" and inserting
the following new definitions in lieu thereof:
"Adjusted EBITDA" for any Person for any period, shall be (A)
the sum of (i) EBITDA of such Person for such period and (ii) for any
Fiscal Quarter ending after April 1, 2003 and prior to October 1, 2004,
up to $25,000,000 of Net Proceeds from Asset Sales consumated during
the Fiscal Quarter of such Person less (B) the FF&E Reserve for such
Person.
"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 XVI 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%
Level XIV Status 2.625% 4.125% 0.500%
Level XV Status 3.000% 4.500% 0.500%
Level XVI Status 3.500% 5.000% 0.500%
"Consolidated Total Revenue" shall mean, for any period, (i)
the aggregate stated amount of all revenue of the US Borrower and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP plus
(ii) the US Borrower's Pro Rata Share of the aggregate stated amount of all
revenue of its Unconsolidated Entities.
"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, Level XIII Status, Level XIV Status, Level XV or Level
XVI 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;
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"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;
"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% but less than 70%.
Level XIV 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 70% but less than 75%.
"Level XV 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 75% but less than 80%.
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"Level XVI 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 80%.
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
more Levels apart, the rating one Level below the higher rating will
apply for the purposes of determining Status.
"Total Indebtedness of any Person means the sum of the
following (without duplication): (a) all Indebtedness of such Person
and its Subsidiaries determined on a consolidated basis in conformity
with GAAP, plus (b) such Person's Pro Rata Share of Indebtedness of
such Person's Unconsolidated Entities, provided, however, Indebtedness
of a Person's Subsidiary shall only be included in the calculation of
Total Indebtedness to the extent of the greater of (x) such Person's
Pro Rata Share of such Indebtedness and (y) the amount of such
Indebtedness guaranteed by such Person, provided further, that in
calculating Total Indebtedness of the US Borrower and its Subsidiaries
for the purposes of Sections 2.6(e), 2.6(f), 2.6(g), 2.22, 5.5, 7.4(b),
7.5(d), 7.6(c) 7.13(b) and 7.17, Total Indebtedness shall be reduced by
unencumbered cash and Cash Equivalents in excess of $25,000,000 held by
the US Borrower and its Subsidiaries at such time."
2. Section 1.1 of the Credit Agreement is hereby further amended
by (A) inserting the following text immediately preceding the period at the end
of the definition of "Net Cash Proceeds", ", it being understood and agreed,
with respect to like-kind exchanges consummated pursuant to, and in compliance
with, Section 1031 of the Code, Net Cash Proceeds shall not be deemed to have
been received by the US Borrower or it Subsidiaries while held by a "qualified
intermediary" (as such term is defined under Section 1031 of the Code)" and (B)
in the definition of "Total Value" (i) deleting clause (D) thereof in its
entirety, (ii) re-designating clauses (E) and (F) of said definition as clauses
(D) and (E), respectively, (iii) in new clause (D), deleting the reference "(D)"
appearing therein and inserting the reference "(C)" in lieu thereof and (iv) in
new clause (E), deleting the reference "(E)" appearing therein and inserting the
reference "(D)" in lieu thereof.
3. Section 1.1 of the Credit Agreement is hereby further amended
by inserting the following new defined term in the appropriate alphabetical
order:
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"Specified Purposes" shall mean (i) any operating expenses
incurred within thirty days of payment thereof by the US Borrower or
its Subsidiaries in the ordinary course of business including, without
limitation, interest expense, taxes and maintenance reserves, scheduled
principal payments and interest in connection therewith on any
Indebtedness (regardless of when incurred) of the US Borrower or its
Subsidiaries; provided, however, the redemption or the repayment of any
Indebtedness other than provided above shall not constitute a Specified
Purpose and (ii) the prepayment by the US Borrower or any of its
Subsidiaries of any such operating expenses incurred in the ordinary
course within thirty days prior to the date such payment is due.
4. Sections 2.6(e), (f) and (g) of the Credit Agreement are each
hereby amended to read in their entirety as follows:
"(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 the US Borrower's Total Indebtedness for borrowed money is equal to
or exceeds 70% of Total Value (before giving effect to the application
of the proceeds thereof), 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 100% of such Net Cash Proceeds (or the portion thereof not
required to be reinvested pursuant to such Management Agreement) shall
be applied to repay outstanding Revolving Credit Loans 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 the US Borrower's Total Indebtedness for
borrowed money is equal to or exceeds 70% of Total Value (before to
giving effect to the application of the proceeds thereof), then, a
prepayment of an amount equal to 100% of such Net Cash Proceeds shall
be applied to repay outstanding Revolving Credit Loans 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 70% of Total Value as of the last day of
such Fiscal Quarter, then outstanding Revolving Credit Loans shall be
repaid in an amount equal to 100% of Available Free Cash Flow for such
Fiscal Quarter."
5. Section 2.17(c) of the Credit Agreement is hereby amended by
deleting the amount "$75,000,000" appearing in said Section and inserting the
amount "$15,000,000" in lieu thereof.
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6. The Credit Agreement is hereby further amended by deleting
Sections 2.21(c) and (d) in their entirety.
7. Section 2.22 of the Credit Agreement is hereby amended by
deleting clause (iii) thereof in its entirety and inserting the following new
clause (iii) in lieu thereof, "(iii) at the time of the delivery of any notice
pursuant to clause (a) or (b) of this Section 2.22 requesting an extension of
the Final Maturity Date, the US Borrower's Total Indebtedness for borrowed money
shall be equal to or less than (x) in the case of a request to extend the Final
Maturity Date made pursuant to clause (a) hereof, 60% of Total Value at all
times from the delivery of the notice requesting such extension until such
Extension Effective Date and (y) in the case of a request to extend the Final
Maturity Date made pursuant to clause (b) hereof, 55% of Total Value at all
times from the delivery of such notice requesting such extension until such
Extension Effective Date".
8. Section 4.18 of the Credit Agreement is hereby amended by
inserting the following text immediately preceding the period at the end
thereof", provided that at any time the US Borrower's Total Indebtedness for
borrowed money is equal to or exceeds 75% of Total Value (or will after giving
effect to the application of proceeds of such Revolving Credit Loans), the
proceeds of the Revolving Credit Loans will be used by the Borrowers solely for
Specified Purposes that can not be funded from operational cash flow".
9. 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 not less than 1.20:1.0 for the Fiscal Quarters ending
June 30, 2003 through September 30, 2004."
10. 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)
1.00:1.0 for the Fiscal Quarters ending June 30, 2003 through March 31,
2004, (ii) 1.05:1.0 for the Fiscal Quarters ending June 30, 2004 and
September 30, 2004.
11. Section 5.4 of the Credit Agreement is hereby amended to read
in its entirety as follows:
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"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 December 31, 2002 through
and including June 29, 2003, (ii) 80% of Total Value from and including
June 30, 2003 through March 31, 2004, (iii) 75% of Total Value from and
including April 1, 2004 through June 30, 2004, (iv) 70% of Total Value
from and including July 1, 2004 through September 30, 2004 and (v) 60%
of Total Value at all other times."
12. 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 45% of Total Value, provided that, Total Secured
Indebtedness shall not exceed (i) 32% of Total Value from December 31,
2002 through and including June 29, 2003 and (ii) 50% of Total Value
from June 30, 2003 through September 30, 2004."
13. Section 7.1(c) of the Credit Agreement is hereby amended by
deleting the percentage "25%" appearing in the second proviso of said Section
and inserting the percentage "50%" in lieu thereof.
14. 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 but is equal to or less than 70% 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
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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 the above, (A) the US
Borrower shall be permitted to declare or authorize the payment of
current dividends on its preferred stock during any Fiscal Quarter in
an aggregate amount not to exceed the difference of (I) the sum of (x)
100% of the Free Cash Flow of the US Borrower for the immediately
preceding four (4) consecutive Fiscal Quarters ending prior to the date
of payment of such dividend plus (y) up to $25,000,000 of Net Proceeds
of Asset Sales per Fiscal Quarter consummated in the four (4) Fiscal
Quarter period ending prior to the date of payment of such dividend,
less (II) the amount of dividends paid by the US Borrower on its
preferred stock during the immediately preceding three (3) consecutive
Fiscal Quarters ending prior to the date of payment of such dividend
and (B) the US Borrower shall be permitted to declare or authorize the
payment of current dividends on its Stock during any Fiscal Quarter but
only to the extent required to maintain its status as a real estate
investment trust."
15. 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
(i) 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
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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); (ii) to the
extent that the US Borrower's Total Indebtedness for borrowed money
exceeds 65% of Total Value but is less than or equal to 70% 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; provided further,
that notwithstanding the above, the US Borrower shall be permitted to
acquire replacement assets required pursuant to management agreements."
16. Section 7.5 of the Credit Agreement is hereby further amended
by inserting the following new Sections (e) and (f) at the end thereof:
"(e) Notwithstanding anything contained in this Agreement, the
US Borrower may engage in like-kind exchanges pursuant to, and in
compliance with, Section 1031 of the Code that may result in Net Cash
Proceeds in an aggregate amount not to exceed $30,000,000 with respect
to the Holiday Inn Amarillo; Holiday Inn Texarkana; Holiday Inn Odessa;
Holiday Inn Moline Airport; Holiday Inn Express Omaha SW; and Hampton
Omaha SW properties.
(f) Notwithstanding anything to the contrary contained in this
Agreement, the US Borrower may acquire assets if the only consideration
paid by the US Borrower for such assets is (x) Stock of the US
Borrower, (y) the assumption of Indebtedness or (z) the payment of
reasonable fees and expenses in connection with the acquisition of such
asset; provided that to the extent the US Borrower assumes any
Indebtedness in connection with the acquisition of an asset, (I) the US
Borrower's Total Indebtedness for borrowed money as a percentage of
Total Value after giving effect to such acquisition shall be 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 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 (4) Fiscal Quarters prior to the
date of such acquisition, in each case with such financial
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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 assumed in connection therewith had
been assumed on the first day of such four (4) Fiscal Quarter period)."
17. Section 7.6(c) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(c) Notwithstanding anything to the contrary contained in
this Agreement, during the period from the First Amendment Effective
Date to December 31, 2004 at any time the US Borrower's Total
Indebtedness for borrowed money is greater than 65% of Total Value, the
US Borrower shall not, and shall not permit any of its Subsidiaries or
Eligible Joint Ventures to engage in the construction of new hotels,
enter into any commitments or agreements to purchase any Hotels under
or to be under, original construction or to acquire any additional
budget hotels, limited service hotels or extended stay hotels, other
than, so long as the US Borrower's Total Indebtedness for borrowed
money is greater than 65% of Total Value but is less than or equal to
70% of Total Value, (A) to engage in or continue the construction of
the Margate complex and (B) to invest an aggregate amount not to exceed
$65,000,000 in up to three Holiday Inns or Embassy Suites prototypes
(or any combination thereof) owned by the Borrower or its Subsidiaries,
it being understood and agreed that if the US Borrower or any of its
Subsidiaries has commenced construction of the Margate complex or a
Hotel at a time when it is in compliance with this Section 7.6(c), it
shall be permitted to complete such construction notwithstanding the
fact that it is no longer in compliance herewith."
18. Section 8.1(c) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(c) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or in any other
Loan Document if such failure shall remain unremedied for (I) 90 days
after the earlier of the date on which a Responsible Officer of any
Borrower becomes aware of such failure or written notice thereof shall
have been given to the US Borrower by the Administrative Agent or any
Lender, and (II) if on the last day of the 90 day period set forth in
clause (I) of this Section 8.1(c), no Revolving Credit Loans are
outstanding and all Drawings in respect of Letters of Credit have been
reimbursed, then such period shall be extended for an additional 90
days so long any Drawing in respect of a Letter of Credit during such
period is reimbursed within three (3) Business Days of the date of such
Drawing as provided in Section 2.20(a); provided that the periods
referred to in this clause (c) shall terminate immediately if at any
time during such periods the Total Indebtedness of the US Borrower for
borrowed money exceeds 82.5% of the Total Value ; or"
19. Section 8.3(a) of the Credit Agreement is hereby amended by
inserting the text "or upon the occurrence and during the continuation of an
Event of Default under Section 8.1(c)
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as a result of the US Borrower's Total Indebtedness exceeding 82.5% of Total
Value" immediately following the text "Termination Date" appearing in said
Section.
20. Exhibit B to the Credit Agreement is hereby amended by
inserting the following new clause (D) immediately following clause (C) thereof:
"[(D) the proceeds of the Revolving Credit Loans shall be used
solely for Specified Purposes that can not be funded from operational cash
flow.]1
1/ To be included for a Proposed Borrowing at any time the US
Borrower's Total Indebtedness for borrowed money is equal to or exceeds 75% of
Total Value (or will exceed 75% of Total Value after giving effect to the
application of proceeds of such Proposed Borrowing)."
II. Miscellaneous Provisions
1. In order to induce the Lenders to enter into this Fourth
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 respects on and as of the Fourth 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 Fourth Amendment Effective Date, in each case
both before and after giving effect to this Fourth Amendment.
2. The US Borrower hereby agrees to pay each Lender which
delivers an executed copy of this Fourth Amendment (by hard copy or facsimile)
to the Administrative Agent by no later than 5:00 p.m. (New York time) on June
25, 2003, a fee (the "Amendment Fee") in an amount equal to 0.15% of such
Lender's Revolving Credit Commitment (after giving effect to this Fourth
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 Fourth Amendment.
3. This Fourth 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 FOURTH 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 Fourth Amendment shall become effective on the date (the
"Fourth 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 $100,000,000 in
accordance with Section 2.4 of the Credit Agreement.
-11-
6. From and after the Fourth 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.
* * *
-12-
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/ Drew McDonald
-----------------------------------
Name: Drew McDonald
Title: Vice President
JPMORGAN CHASE BANK, TORONTO
BRANCH (f/k/a The Chase Manhattan
Bank, Toronto Branch)
By: /s/ Drew McDonald
-----------------------------------
Name: Drew McDonald
Title: Vice President
By: ___________________________________
Name:
Title:
BANK OF AMERICA, N.A.
By: /s/ Lesa J. Butler
-----------------------------------
Name: Lesa J. Butler
Title: Principal
BANK OF MONTREAL
By: ___________________________________
Name:
Title:
BANK OF NOVA SCOTIA, NEW YORK
AGENCY
By: /s/ T.J. McNaught
-----------------------------------
Name: T.J. McNaught
Title: Director
DEUTSCHE BANK TRUST COMPANY
AMERICAS (f/k/a Bankers Trust
Company)
By: /s/ George R. Reynolds
-----------------------------------
Name: George R. Reynolds
Title: Vice President
CHANG HWA COMMERCIAL BANK LTD.,
NEW YORK BRANCH
By: /s/ Ming-Hsien Lin
-----------------------------------
Name: Ming-Hsien Lin
Title: SVP & General Manager
CITICORP NORTH AMERICA, INC.
By: /s/ Michael P. Psyllos
-----------------------------------
Name: Michael P. Psyllos
Title: Vice President
CREDIT LYONNAIS, NEW YORK BRANCH
By: /s/ Bruno DeFloor
-----------------------------------
Name: Bruno DeFloor
Title: Vice President
FLEET NATIONAL BANK, N.A.
By: ___________________________________
Name:
Title:
HUA NAN COMMERCIAL BANK, LTD.
NEW YORK AGENCY
By: /s/ Yun-Peng Chang
-----------------------------------
Name: Yun-Peng Chang
Title: SVP & General Manger
MORGAN STANLEY SENIOR FUNDING,
INC.
By: /s/ illegible
-----------------------------------
Name: illegible
Title: Executive Director
WELLS FARGO, NATIONAL
ASSOCIATION
By: /s/ Stephen P. Prinz
-----------------------------------
Name: Stephen P. Prinz
Title: Executive Vice President
CITIBANK, N.A.
By: /s/ James B. Maxwell
-----------------------------------
Name: James B. Maxwell
Title: Attorney-in-fact