EXHIBIT 10.19.5
FIFTH AMENDMENT
FIFTH AMENDMENT (the "Fifth Amendment"), dated as of October 29, 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"), 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 definition of "Minimum Tangible Net Worth" appearing therein and
inserting the following new definition in lieu thereof:
"Minimum Tangible Net Worth" means, with respect to the US
Borrower, the sum of (i) $1,500,000,000; plus (ii) 50% of the aggregate
net proceeds received by the US Borrower or any of its Subsidiaries
after June 30, 2000 in connection with any offering of Stock or Stock
Equivalents of the US Borrower and its Subsidiaries taken as a whole,
minus (iii) up to $250,000,000 in the aggregate of non-cash impairment
charges related to the write-down of certain non-strategic Hotels
actually incurred by the US Borrower after June 30, 2003.
2. Section 1.1 of the Credit Agreement is hereby further amended
by deleting the paragraph appearing at the end of the definition of
"Unencumbered Hotel Property" and inserting the following paragraph in lieu
thereof:
"provided that, if a Joint Venture Hotel is owned by an Eligible Joint
Venture which owns more than a single Hotel, such Joint Venture Hotel
shall only be an Unencumbered Hotel Property if it satisfies all of the
requirements set forth in subparagraphs (a) through (d) above and all
other Hotels owned by such Eligible Joint Venture satisfy the
conditions set forth in subparagraphs (a) and (c) above; provided
further, that the parties acknowledge and agree that (I) the Embassy
Suites Hotel located at Los Angeles Airport, CA is subject to a
mortgage in favor of FelCor LP but the Administrative Agent has agreed,
as a one time waiver only, to accept such Hotel as Unencumbered (for
purposes of clause (a) above) so long as such Hotel shall cease to be
Unencumbered (for purposes of clause (a) above), inter alia, in the
event that FelCor LP assigns its mortgage to any other Person and (II)
each Warehouse Facility Hotel shall be deemed to be an Unencumbered
(for purposes of clause (a) above) even if it is subject to a mortgage
or other Lien granted under the Warehouse Facility, at all times when
there is no (x) Indebtedness outstanding and (y) claim for
indemnification against the Borrower or any of it Subsidiaries, for
which notice has been received, in each case under the Warehouse
Facility, provided that each Warehouse Facility Hotel shall cease to be
deemed to be Unencumbered (for purposes of clause (a) above), inter
alia, at any time that (x) any Indebtedness is outstanding or (y) the
Borrower or any of its Subsidiaries receives notice that it is subject
to a claim for indemnification, in each case under the Warehouse
Facility."
3. Section 1.1 of the Credit Agreement is hereby further amended
by inserting the following defined terms in the appropriate alphabetical order:
"Warehouse Facility" shall mean that certain loan facility
agreement dated as of June 18, 2003, among the Borrower, certain
Subsidiaries of the Borrower and JPMorgan Chase Bank, as same may be
amended from time to time.
"Warehouse Facility Hotel" shall mean each Hotel that is
mortgaged or otherwise subject to a Lien to secure the Warehouse
Facility.
4. 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 1.10:1.0 for the Fiscal Quarters ending
September 30, 2003 through September 30, 2004."
5. Section 7.5(e) of the Credit Agreement is hereby amended to
read in its entirety as follows:
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"(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 (i) 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 and (ii) with up to $32,000,000 of Net Cash
Proceeds received from the disposition of four (4) Holiday Inn Hotels
located in Ontario, Canada.".
II. Miscellaneous Provisions
1. In order to induce the Lenders to enter into this Fifth
Amendment, each Borrower hereby represents and warrants on behalf of itself and
its respective Subsidiaries that (i) the representations and warranties
contained in Article IV of the Credit Agreement are true and correct in all
material respects on and as of the Fifth 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 Fifth Amendment Effective Date, in each case
both before and after giving effect to this Fifth Amendment.
2. This Fifth 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.
3. THIS FIFTH 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.
4. This Fifth Amendment shall become effective on the date (the
"Fifth Amendment Effective Date") when 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) same to
the Administrative Agent.
5. From and after the Fifth Amendment Effective Date, all
references in the Credit Agreement and in the other Loan Documents shall be
deemed to be references to the Credit Agreement as modified hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Fifth Amendment as of the date
first above written.
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/ illegible
-----------------------------------
Name: illegible
Title: Managing Director
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: ___________________________________
Name:
Title:
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: ___________________________________
Name:
Title:
FLEET NATIONAL BANK, N.A.
By: ___________________________________
Name:
Title:
HUA NAN COMMERCIAL BANK, LTD.
NEW YORK AGENCY
By: ___________________________________
Name:
Title:
MORGAN STANLEY SENIOR FUNDING,
INC.
By: /s/ Todd Vannucci
-----------------------------------
Name: Todd Vannucci
Title: Executive Director
WELLS FARGO, NATIONAL
ASSOCIATION
By: /s/ Kent Howard
-----------------------------------
Name: Kent Howard
Title: SVP
CITIBANK, N.A.
By: /s/ James B. Maxwell
-----------------------------------
Name: James B. Maxwell
Title: Attorney-in-fact