Ex. 4.04 CONFORMED COPY
THIRD AMENDMENT dated as of April 9, 1998 (this
"Amendment"), among CHOICE HOTELS INTERNATIONAL, INC., a Delaware
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corporation (the "Borrower"), the undersigned financial
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institutions party to the Credit Agreement referred to below (the
"Lenders"), and THE CHASE MANHATTAN BANK, as agent for the
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Lenders (in such capacity, the "Agent").
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A. Reference is made to the Competitive Advance and Multi-Currency
Credit Facilities Agreement dated as of October 15, 1997, as amended (the
"Credit Agreement") among the Borrower, the Lenders and the Agent. Capitalized
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terms used but not otherwise defined herein have the meanings assigned to them
in the Credit Agreement.
B. The Borrower has requested that the Lenders amend certain
provisions of the Credit Agreement. The Lenders are willing to do so, subject
to the terms and conditions of this Amendment.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Article I. (a) The definition of "Change in
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Control" contained in Article I of the Credit Agreement is hereby amended by (i)
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inserting "(i)" immediately prior to "such" in the fourteenth line thereof and
(ii) inserting the following immediately prior to the ";" in clause (a) thereof:
"or (ii) in the case of the Baron Entities only, the letter agreement dated
February 4, 1998, between the Borrower and the Baron Entities remains in effect
and the Baron Entities are in compliance therewith".
(b) Article I of the Credit Agreement is hereby amended to add the
following terms in their proper alphabetical order:
"Offering Memorandum Draft" shall have the meaning assigned to such term in
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Section 6.01(i).
"Senior Notes" shall have the meaning assigned to such term in Section
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6.01(i).
"Senior Note Documents" shall mean the indenture or indentures under which
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the Senior Notes are issued and all other instruments, agreements and
documents evidencing, guaranteeing or providing for the terms and
conditions of the Senior Notes.
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SECTION 2. Amendment to Section 6.01. Section 6.01 of the Credit
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Agreement is hereby amended by replacing clause (i) thereof with the following:
(i) Indebtedness of the Borrower represented by senior unsecured notes (the
"Senior Notes") in an aggregate principal amount not to exceed $100,000,000
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on substantially the terms (including tenor, covenants and events of
default) described in the draft dated April 9, 1998 of the Offering
Memorandum relating to such notes (the "Offering Memorandum Draft") and
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Indebtedness of the Subsidiaries consisting of Guarantees of the Senior
Notes; provided that no Subsidiary shall Guarantee the Senior Notes unless
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it shall have also Guaranteed the Obligations on a pari passu basis.
SECTION 3. Amendment to Section 6.04. Section 6.04 of the Credit
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Agreement is hereby amended by deleting the reference to "(h)" in clause (d)
thereof.
SECTION 4. Amendment to Section 6.12. Section 6.12 of the Credit
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Agreement is hereby amended by replacing the "." at the end thereof with
";provided that the foregoing shall not apply to any prohibitions or
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requirements set forth in any Loan Document or set forth in the Senior Note
Documents and described in the Offering Memorandum Draft."
SECTION 5. Representations, Warranties and Agreements. The Borrower
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hereby represents and warrants to and agrees with each Lender and the Agent
that:
(a) The representations and warranties set forth in Article III of
the Credit Agreement are true and correct in all material respects with the
same effect as if made on the Amendment Effective Date, except to the
extent such representations and warranties expressly relate to an earlier
date.
(b) The Borrower has the requisite power and authority to execute,
deliver and perform its obligations under this Amendment.
(c) The execution, delivery and performance by the Borrower of this
Amendment (i) have been duly authorized by all requisite action and (ii)
will not (A) violate (x) any provision of law, statute, rule or regulation,
or of the certificate or articles of incorporation or other constitutive
documents or
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by-laws 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, (B) be in
conflict with, 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 (C) 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.
(d) This Amendment has been duly executed and delivered by the
Borrower. Each of this Amendment and the Credit Agreement, as amended
hereby, constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by (i) any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and (ii) general principals of equity.
(e) As of the Amendment Effective Date, no Event of Default or
Default has occurred and is continuing.
SECTION 6. Conditions to Effectiveness. This Amendment shall become
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effective on the date of the satisfaction in full of the following conditions
precedent (the "Amendment Effective Date"):
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(a) The Agent shall have received duly executed counterparts hereof
which, when taken together, bear the authorized signatures of the Borrower,
the Agent and the Required Lenders.
(b) All legal matters incident to this Amendment shall be
satisfactory to the Required Lenders, the Agent and Cravath, Swaine &
Moore, counsel for the Agent.
(d) The Agent shall have received such other documents, instruments
and certificates as it or its counsel shall reasonably request.
SECTION 7. Credit Agreement. Except as specifically stated herein,
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the Credit Agreement shall continue in full force and effect in accordance with
the
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provisions thereof. As used therein, the terms "Agreement", "herein",
"hereunder", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Loan Agreement as modified hereby.
SECTION 8. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Counterparts. This Amendment may be executed in any
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number of counterparts, each of which shall be an original but all of which,
when taken together, shall constitute but one instrument. Delivery of an
executed counterpart of a signature page of this Amendment by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 10. Expenses. The Borrower agrees to reimburse the Agent for
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its out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel
for the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the date first
above written.
CHOICE HOTELS INTERNATIONAL, INC.
by
/s/ Michael J. DeSantis
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Name: Michael J. DeSantis
Title: Senior Vice President,
General Counsel and
Secretary
THE CHASE MANHATTAN BANK,
individually and as Issuing Bank
and Agent
by
/s/ Karen M. Sharf
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Name: Karen M. Sharf
Title: Vice President
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BANK OF TOKYO - MITSUBISHI TRUST COMPANY
by
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Name:
Title:
CRESTAR BANK
by
/s/ Greg D. Wheeless
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Name: Greg D. Wheeless
Title: Senior Vice President
THE DAI-ICHI KANGYO BANK, LTD.
by
/s/ Bertram Tang
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Name: Bertram Tang
Title: Vice President
FIRST NATIONAL BANK OF MARYLAND
by
/s/ Michael B. Stueck
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Name: Michael B. Stueck
Title: Vice President
FIRST UNION NATIONAL BANK
by
/s/ Monica Sevila
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Name: Monica Sevila
Title: Assistant Vice President
THE FUJI BANK, LIMITED
by
/s/ Raymond Ventura
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Name: Raymond Ventura
Title: Vice President & Manager
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
by
/s/ John V. Veltri
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Name: John V. Veltri
Title: Joint General Manager
THE LONG TERM CREDIT BANK OF JAPAN,
LTD., NEW YORK BRANCH
by
/s/ Nozomi Moue
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Name: Nozomi Moue
Title: Deputy General Manager
MELLON BANK, N.A.
by
/s/ Laurie G. Dunn
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Name: Laurie G. Dunn
Title: Vice President
NATIONSBANK, N.A.
by
/s/ Michael R. Heredia
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Name: Michael R. Heredia
Title: Senior Vice President
THE SANWA BANK, LIMITED,
NEW YORK BRANCH
by
/s/ Dominic J. Sorresso
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Name: Dominic J. Sorresso
Title: Vice President
SUMMIT BANK
by
/s/ Carter E. Evans
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Name: Carter E. Evans
Title: Vice President
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THE TOYO TRUST & BANKING COMPANY,
LTD., NEW YORK BRANCH
by
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Name:
Title:
by
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Name:
Title: