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EXHIBIT 10.22.4
SECOND AMENDMENT
to
LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT ("Second Amendment"), dated as
of August 20, 1999 among FELCOR LODGING TRUST INCORPORATED, a Maryland
corporation (f/k/a FelCor Suite Hotels, Inc.) ("FelCor") and FELCOR LODGING
LIMITED PARTNERSHIP, a Delaware limited partnership (f/k/a FelCor Suites Limited
Partnership) ("FelCor LP" and collectively with FelCor, the "Borrower"), the
financial institutions listed on the signature pages hereof (each individually a
"Lender" and collectively the "Lenders"), and THE CHASE MANHATTAN BANK, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
WITNESSETH:
WHEREAS, that certain Loan Agreement, dated as of April 1, 1999, among
Borrower, the financial institutions party thereto, and the Administrative Agent
provides for the making of a loan to Borrower in the aggregate principal amount
of $375,000,000 (the "Loan Agreement"); and
WHEREAS, pursuant to that certain First Amendment to the Credit
Agreement and the Loan Agreement ("First Amendment"), dated as of May 17, 1999
among the parties hereto, the parties modified the defined term "Unencumbered"
in the Loan Agreement;
WHEREAS, the parties hereto desire to cancel the amendments made by the
First Amendment and to modify the Loan Agreement in certain respects;
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree that the Loan Agreement is amended
as follows:
1. The First Amendment is hereby canceled and shall have no force or effect.
All amendments set forth in the First Amendment are hereby declared void
and the terms of the Loan Agreement are hereby restored to the terms in
effect immediately prior to the adoption of the First Amendment, but with
such amendments and modifications thereto as are set forth elsewhere
herein.
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2. Under Section 1.1 of the Loan Agreement, there is hereby added thereto (in
alphabetical order) a new defined term which shall read as follows:
"`Bristol Distribution' shall mean Borrower's
one-time earnings and profits distribution associated with the
merger between Borrower and Bristol Hotel Company, a Delaware
corporation, pursuant to that certain Merger Agreement, dated
as of March 23, 1998 in the amount of $0.345 per common share
and unit, and $0.207 per share of Series A Cumulative
Convertible Preferred Stock, as distributed by Borrower on
January 29, 1999 to holders of record on December 30, 1998."
3. Under Section 1.1 of the Loan Agreement, there is hereby added thereto (in
alphabetical order) a new defined term which shall read as follows:
"`Disqualified Stock' shall mean any class or series
of Stock of any Person that by its terms or otherwise is (i)
required to be redeemed prior to the Maturity Date of the
Loans, (ii) redeemable at the option of the holder of such
class or series of Stock at any time prior to the Maturity
Date of the Loans, or (iii) convertible into or exchangeable
for Stock referred to in clause (i) or (ii) above or
Indebtedness having a scheduled maturity prior to the Maturity
Date of the Loans."
4. Under the definition of the term "Stock" in Section 1.1 of the Loan
Agreement, the period at the end of the sentence is hereby deleted and the
following is hereby substituted in place thereof.
"and limited liability company interests."
5. Under the definition of the term "Total Value" in Section 1.1 of the Loan
Agreement, paragraph (B) thereof is hereby deleted in its entirety and the
following is hereby substituted in place thereof:
"(B) for Hotels owned or leased pursuant to a Qualified Lease
by Borrower (or any Subsidiary or Unconsolidated Entity of
Borrower) (x) for less than four (4) fiscal Quarters and for
which the Borrower (or any Subsidiary or Unconsolidated Entity
of Borrower) does not have, or is not able to reasonably
obtain, trailing four quarter audited financial information or
(y) which the Borrower has designated as a Refurbishment
Hotel, in each such case 95% of the Borrower's Investment in
such Hotels (provided that if the Allerton Hotel is designated
as a Refurbishment Hotel, then such Hotel shall be valued at
85% of the Borrower's Investment in such Hotel); plus"
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6. Under the definition of the term "Unencumbered" in Section 1.1 of the Loan
Agreement, the last parenthetical phrase in paragraph (c) is hereby deleted
in its entirety and the following is hereby substituted in place thereof:
"(other than pursuant to an "equal and ratable" clause
contained in any agreement governing Indebtedness.)"
7. Under the definition of the term "Unencumbered" in Section 1.1 of the Loan
Agreement, the last paragraph thereof is hereby deleted in its entirety and
the following is hereby substituted in place thereof:
"For the purposes of this Agreement, any Joint Venture Hotel
or Hotel owned by the Borrower, or a Subsidiary of the
Borrower shall not be deemed to be Unencumbered unless both
(i) such Hotel and (ii) all Stock owned directly or indirectly
by either FelCor or FelCor LP in the entity that owns such
Hotel is Unencumbered (other than in connection with the
Pledge Agreement)."
8. Under Section 1.1 of the Loan Agreement, there is hereby added thereto (in
alphabetical order) a new defined term which shall read as follows:
"`Unsecured Indebtedness' of any Person means any
Indebtedness of such Person not required to be included in the
computation of Total Secured Indebtedness of such Person."
9. Under the definition of the term "Unsecured Interest Expense" in Section
1.1 of the Loan Agreement, the term "unsecured Indebtedness" as used
therein is hereby deleted wherever used and the term "Unsecured
Indebtedness" is hereby substituted in place thereof.
10. Under Section 6.11 of the Loan Agreement, there is hereby added to the end
of subsection (a) of such section a new clause which shall read as follows:
"provided, however, that for purposes of this subparagraph (a)
of this paragraph 6.11 only, "Reporting Operating Lessees" and
"Requested Operating Lessee" shall not include Bristol."
11. Section 7.4 of the Loan Agreement is hereby deleted in its entirety and the
following is hereby substituted in place thereof:
7.4 "Restricted Payments. The Borrower, unless otherwise
required in order to maintain FelCor's status as a real estate
investment trust in accordance with the written advice of
independent counsel to the Borrower, shall not, and shall not
permit its Subsidiaries to declare or authorize any dividend
payment or other distribution (such dividend or distribution
shall be deemed made when so declared or authorized) of
assets, properties, cash, rights, obligations or securities
(other than the Bristol Distribution and distributions of
Stock or Stock Equivalents,
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exclusive of Disqualified Stock) on account or in respect of
any of its Stock or Stock Equivalents or any payment (whether
in Disqualified Stock, Indebtedness, cash or other assets),
including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, defeasance, acquisition,
cancellation or termination of any such Stock or Stock
Equivalents (collectively, "Restricted Payments"); provided,
that, notwithstanding the foregoing, (i) any Subsidiary may
make Restricted Payments, directly or indirectly, to the
Borrower or any Guarantor; (ii) any non-wholly owned
Subsidiary of the Borrower may make Restricted Payments to the
holders of its Stock or Stock Equivalents generally, so long
as the Borrower or its respective Subsidiary which owns the
Stock or Stock Equivalents in the Subsidiary paying such
Restricted Payments receives at least its proportionate share
thereof (based upon its relative economic holding of equity
interest in the Subsidiary paying such Restricted Payments and
taking into account the relative preferences, if any, of the
various classes of equity interests in such Subsidiary or the
terms of any agreements applicable thereto), and (iii) the
Borrower or any Subsidiary may make payments to purchase Stock
or Stock Equivalents of any non-wholly owned Subsidiary. In
addition, in any Fiscal Quarter the Borrower may make
Restricted Payments which, when added to Restricted Payments
made during the immediately preceding three consecutive Fiscal
Quarters, do not exceed an aggregate amount equal to the
lesser of 85% of the consolidated Adjusted Funds From
Operations and 100% of the Free Cash Flow of the Borrower in
each case for the immediately preceding four consecutive
Fiscal Quarters; provided further, that, in addition to the
Restricted Payments permitted above, the Borrower may
purchase, redeem or acquire Stock or Stock Equivalents of the
Borrower in an amount of up to $50,000,000.00 plus net
proceeds (including the fair market value of any property
received) of any issuance of Stock or Stock Equivalents (other
than Disqualified Stock) of the Borrower subsequent to June
30, 1999."
12. The Loan Agreement and the other Loan Documents (as defined in the Loan
Agreement) are in full force and effect without default thereunder by
Borrower and all of the representations and warranties contained in the
Loan Agreement and the other Loan Documents are hereby restated as if the
same were made as of the date hereof (it being understood and agreed that
any representation or warranty which by its terms is made on a specified
date shall be required to be true and correct only as of such specified
date).
13. If there shall be any inconsistencies between the terms, covenants,
conditions and provisions set forth in the Loan Agreement, and the terms,
covenants, conditions and provisions set forth in this Second Amendment,
then, the terms, covenants, conditions and provisions of this Second
Amendment shall prevail. Whenever possible, the provisions of this Second
Amendment shall be deemed supplemental to and not in derogation of the
terms of the Loan Agreement and any documents relating thereto.
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14. Each party hereto hereby confirms and ratifies all of the terms and
provisions of the Loan Agreement as amended by this Second Amendment.
Except as expressly amended hereby, all of the terms of the Loan Agreement
shall remain in full force and effect.
15. Each party hereto represents, warrants and covenants that such party (and
the undersigned representative of such party) has full power, authority and
legal right to execute this Second Amendment and to keep and observe all of
the terms of this Second Amendment and the Loan Agreement on such party's
part to be observed and performed.
16. If any term, covenant or condition of this Second Amendment shall be held
to be invalid, illegal or unenforceable in any respect, this Second
Amendment shall be construed without such provision.
17. This Second Amendment shall be binding upon the successors and assigns of
the Borrower and shall inure to the benefit of and be enforceable by the
Administrative Agent under the Loan Agreement and its successors and
assigns; provided that no Borrower may assign any of its rights or
obligations hereunder without the prior written consent of the
Administrative Agent. THIS SECOND AMENDMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK
(WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS).
18. This Second Amendment may be executed in any number of separate
counterparts, each of which shall, collectively and separately, constitute
one agreement.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, this instrument has been duly executed by the
undersigned as of the day and year first above written.
FELCOR LODGING TRUST INCORPORATED,
a Maryland corporation
By: /s/ LAWRENCE D. ROBINSON
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Name: Lawrence D. Robinson
Title: Senior Vice President
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FELCOR LODGING LIMITED PARTNERSHIP, a
Delaware limited partnership
By: FELCOR LODGING TRUST INCORPORATED, a
Maryland corporation, its sole general partner
By: /s/ LAWRENCE D. ROBINSON
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Name: Lawrence D. Robinson
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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Signature for Loan Agreement
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ ALAN BREINDEL
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Name: Alan Breindel
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Title: Managing Director
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