EXHIBIT 10.31.4
THIRD AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT ("Amendment") is dated as of August 12, 1998, among SUNSTONE HOTEL
INVESTORS, L.P., a Delaware limited partnership, as the Borrower, BANK ONE,
ARIZONA, NA, as a Lender, as Issuing Bank, as Administrative Agent and as Co-
Agent, CREDIT LYONNAIS NEW YORK BRANCH, as a Lender, as Documentation Agent and
as Co-Agent, WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender, as Syndication
Agent and as Co-Agent, DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as
a Lender, and SOCIETE GENERALE, SOUTHWEST AGENCY, as a Lender, NATIONSBANK, N.A.
(successor to NATIONSBANK OF TEXAS, N.A.), as a Lender, COMMERZBANK AG, LOS
ANGELES BRANCH, as a Lender, THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS
ANGELES AGENCY, as a Lender and AMSOUTH BANK, as a Lender.
W I T N E S S E T H:
WHEREAS, the Borrower and the Lenders are party to that certain
Amended and Restated Revolving Credit Agreement (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") dated as of
October 10, 1997, and heretofore amended by First Amendment to Amended and
Restated Revolving Credit Agreement dated as of January 26, 1998 and by Second
Amendment to Amended and Restated Revolving Credit Agreement dated as of July
22, 1998; and
WHEREAS, the Borrower has requested the Lenders to consent to the
Senior Notes (as hereinafter defined) and the Lenders have agreed to consent
thereto, all on and subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties hereto amend the Credit Agreement, and covenant
and agree, as follows:
1. Defined Terms.
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1.1 Terms used herein and not defined herein shall have the meanings
provided therefor in the Credit Agreement.
1.2 The following definitions in the Credit Agreement are hereby
amended:
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(a) The definition of the term "Guaranty" is hereby amended and
restated as follows:
"Guaranty" means the Sunstone Guaranty, any Subsidiary Guaranty or any
of the Limited Guaranties.
(b) The definition of the term "Unencumbered" is hereby amended by
inserting at the end of the second parenthetical phrase at the end of
subparagraph (c) the following:
but excluding the equal and ratable liens provided for in Section
3.4(d).
1.3 The following definitions are hereby added to the Credit
Agreement:
"Indenture" means the Indenture among Borrower, Sunstone and U.S.
Trust Company, California, N.A., as trustee, under which the Senior Notes
shall be issued.
"Offering Memorandum" means that certain Private Placement Offering
Memorandum dated as of July 29, 1998 providing for the issuance of the
Senior Notes.
"Senior Notes" means the notes to be issued by the Borrower in an
aggregate principal amount not to exceed $150,000,000, pursuant to and in
accordance with the Offering Memorandum.
"Subsidiary Guaranty" means a guaranty executed by a Subsidiary of the
Borrower or of Sunstone, in substantially the form of the Sunstone Guaranty
(but modified as required by the Administrative Agent to reflect the
execution thereof by such Subsidiary rather than by Sunstone), guarantying
the principal of and interest on the Loan and all other Obligations, as
such guaranty may be amended, supplemented or otherwise modified from time
to time.
2. Consent to Senior Notes. The Lenders hereby consent to the sale
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and issuance of the Senior Notes by the Borrower and the execution and delivery
by the Borrower and Sunstone of the Indenture at any time on or before August
31, 1998, provided that all of the terms and provisions (including without
limitation the covenants of the Borrower and Sunstone) are the same as those set
forth in the Offering Memorandum in all material respects. To the extent, if
any, that the requirements of Section 7.24 of the Credit Agreement have not
heretofore been satisfied with respect to the Borrower's request for the consent
of the Lenders to the Senior Notes, such requirements are hereby waived.
(b) The Borrower hereby agrees to furnish to the Administrative Agent,
prior to the execution and delivery thereof by the Borrower and Sunstone, a
true, correct and
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complete copy of the Indenture, for approval by the Administrative Agent,
provided, however, that, as long as the Indenture is in conformity with the
terms and provisions set forth in the Offering Memorandum, the Administrative
Agent shall not unreasonably withhold its approval thereof.
3. Amendment of Section 3.4. Section 3.4 is hereby amended by adding
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the following subparagraph (d) at the end thereof:
(d) Notwithstanding the foregoing provisions of this Section
3.4, the Lenders hereby agree that any Lien granted to the
Administrative Agent for the benefit of the Lenders under this Section
3.4 may, to the extent required under the Indenture, be granted, on an
equal and ratable basis, to the then Trustee under the Indenture for
the benefit of the holders of the Senior Notes, and that the grant of
such Lien to the Administrative Agent and such Trustee on an equal and
ratable basis shall satisfy the requirements of this Section 3.4.
4. Amendment to Section 8.2. Section 8.2 is hereby amended (a) by
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deleting the period at the end thereof and inserting in lieu thereof "; or" and
(b) by adding the following subparagraph (viii) thereafter:
(viii) the Senior Notes, provided that Borrower shall not cause or
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permit any Subsidiary of the Borrower or Sunstone to execute and
deliver a guaranty of the Senior Notes unless and until such
Subsidiary shall execute and deliver to the Agent, for the benefit of
the Lenders, a Subsidiary Guaranty.
5. Amendment of Section 8.7. The following sentence is hereby added
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at the end of Section 8.7:
Neither the Borrower nor Sunstone shall modify or amend the Indenture
or any of the Senior Notes in any material respect, without the prior
written consent of the Required Lenders, which shall not be
unreasonably withheld.
6. Amendment of Section 8.15. Section 8.15 of the Credit Agreement
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is hereby amended by adding, immediately prior to the period at the end of
subparagraph (ii) thereof, the following:
and provided further that no Lien may be granted to the Trustee under
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the Indenture or otherwise for the benefit of the holders of the
Senior Notes (except as provided in Section 3.4(d)).
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7. Amendment of Section 9.1. Section 9.1 of the Credit Agreement is
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hereby amended (a) by deleting the period at the end thereof and inserting in
lieu thereof "; or" and (b) by adding the following subparagraph (r):
(r) The Borrower shall make or be required to make, either by
reason of the "Asset Sales" covenant or "Change in Control" provisions
in the Indenture, an "Offer to Purchase" (as that term is defined in
the Indenture) offering to purchase any or all of the Senior Notes.
8. Consent of Guarantors. Prior to or simultaneously with the
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execution and delivery of this Amendment, and as a condition to this Amendment,
the Borrower shall deliver to the Administrative Agent the Consent of Guarantors
attached to this Amendment.
9. Expenses. Borrower shall pay all costs and expenses of the
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Administrative Agent (including reasonable attorneys' fees and expenses)
incurred in connection with this Amendment.
10. Ratification. The Credit Agreement (as amended hereby) and the
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other Loan Documents are hereby ratified and remain in full force and effect.
11. Execution in Counterparts. This Amendment may be executed in any
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number of counterparts and by different parties hereto in separate counterparts,
each of which
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12. when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers, thereunto duly authorized, as of the
date first above written.
BORROWER:
SUNSTONE HOTEL INVESTORS, L.P.
By: Sunstone Hotel Investors, Inc.
its general partner
By: ____________________________
Name:
Title:
LENDERS:
BANK ONE, ARIZONA, NA
as Administrative Agent, Co-Agent,
Issuing Bank and Lender
By: ____________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
as Documentation Agent, Co-Agent
and Lender
By: ____________________________
Name:
Title:
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Syndication Agent, Co-Agent and
Lender
By: ____________________________
Name:
Title:
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DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as Lender
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY,
as Lender
By: ____________________________
Name:
Title:
NATIONSBANK, N.A., as Lender
By:_____________________________
Name:
Title:
COMMERZBANK AG, LOS ANGELES BRANCH,
as Lender
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
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THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY, as Lender
By:_____________________________
Name:
Title:
AMSOUTH BANK, as Lender
By:_____________________________
Name:
Title:
CONSENT OF GUARANTORS
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Each of the undersigned, being a Guarantor (as defined in the Credit
Agreement referred to in the foregoing Amendment) does hereby consent to the
foregoing Amendment, and ratify and affirm that the Guaranty (as defined in the
Credit Agreement) heretofore executed by the undersigned remains in full force
and effect for the benefit of the Lenders under the Credit Agreement, as amended
by the foregoing Amendment.
This Consent of Guarantors may be executed in counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same document.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Consent of Guarantors as of this day of August, 1998.
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Sunstone Hotel Investors, Inc.
By: _________________________
Its: ________________________
_____________________________
Robert A. Alter
_____________________________
Charles Biederman
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_____________________________
Daniel E. Carsello
_____________________________
Gerald N. Clark
_____________________________
C. Robert Enever
Peacock, LLC
By: _________________________
Its: ________________________
Shivani, L.L.C.
By: _________________________
Its: ________________________
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