FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Dated as of August 22, 2006 by and among HOSPITALITY PROPERTIES TRUST,
Exhibit 10.1
EXECUTION COPY
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 22, 2006
by and among
HOSPITALITY PROPERTIES TRUST,
as Borrower
Each of
WACHOVIA CAPITAL MARKETS, LLC,
and
ROYAL BANK OF SCOTLAND PLC,
as Joint Lead Arrangers
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
THE ROYAL BANK OF SCOTLAND PLC,
as Syndication Agent,
EACH OF
CALYON NEW YORK BRANCH,
ROYAL BANK OF CANADA,
and
SUMITOMO MITSUI BANKING CORPORATION
as Documentation Agents,
SOCIETE GENERALE,
as Senior Managing Agent,
EACH OF
MIZUHO CORPORATE BANK, LTD.,
PNC BANK, NATIONAL ASSOCIATION,
UNITED OVERSEAS BANK LIMITED,
U.S. BANK NATIONAL ASSOCIATION,
and
BANK OF MONTREAL
as Managing Agents
and
THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO
AND THEIR ASSIGNEES PURSUANT TO SECTION 12.5,
as Lenders
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as of August 22, 2006 by and among HOSPITALITY PROPERTIES TRUST (the “Borrower”), each of the financial institutions a party hereto (the “Lenders”), and WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (the “Agent”).
WHEREAS, the Borrower, the Lenders and the Agent have entered into that certain Amended and Restated Credit Agreement dated as of May 23, 2005 (as in effect immediately prior to the date hereof, the “Credit Agreement”); and
WHEREAS, the Borrower, the Lenders and the Agent desire to amend certain provisions of the Credit Agreement on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
Section 1. Specific Amendments to Credit Agreement. The parties hereto agree that the Credit Agreement is amended as follows:
(a) The Credit Agreement is amended by restating in full the definitions of “Applicable Margin” and “Termination Date” contained in Section 1.1. thereof as follows:
“Applicable Margin” means the percentage per annum determined, at any time, based on the range into which the Borrower’s Credit Rating then falls, in accordance with the levels in the table set forth in Schedule 1.1.(a) (each a “Level”). Any change in the Borrower’s Credit Rating which would cause it to move to a different Level in such table shall effect a change in the Applicable Margin on the Business Day on which such change occurs. During any period in which the Borrower has received Credit Ratings that are not equivalent, the Applicable Margin shall be determined by the higher of such two Credit Ratings; provided, however, that if the ratings of S&P and Moody’s are two pricing Levels apart, then the Applicable Margin shall be based on the Level that falls between the Levels that correspond to the ratings of S&P and Moody’s. During any period for which the Borrower has received a Credit Rating from only one Rating Agency, then the Applicable Margin shall be determined based on such Credit Rating. During any period for which the Borrower has not received a Credit Rating from either Rating Agency, then the Applicable Margin shall be determined based on Level 5.
“Termination Date” means October 24, 2010, or such later date to which the Termination Date may be extended pursuant to Section 2.15., or such earlier date on which the Commitments are terminated pursuant to Section 2.11., 10.2. or otherwise.
(b) The Credit Agreement is amended by restating Section 3.6.(d) thereof in its entirety as follows:
(d) Extension Fees. If, pursuant to Section 2.15., the Termination Date is extended, the Borrower agrees to pay to the Agent for the account of each Lender an extension fee equal to fifteen one-hundredths of one percent (0.15%) of each such Lender’s Commitment at the time of such extension. Payment of such fees shall be a condition precedent to the effectiveness of any such extension.
(c) The Credit Agreement is amended by restating Section 9.1.(a) thereof in its entirety as follows:
(a) Leverage Ratio. The ratio of (i) Total Indebtedness to (ii) Total Asset Value, to exceed 0.60 to 1.00 at any time.
(d) The Credit Agreement is amended by restating Section 9.1.(d) thereof in its entirety as follows:
(d) Unencumbered Leverage Ratio. The ratio of (i) Unencumbered Asset Value to (ii) Unsecured Indebtedness, to be less than 1.67 to 1.00 at any time.
(e) Schedule 1.1.(a) to the Credit Agreement is hereby superseded and replaced by Schedule 1.1.(a) attached to this Amendment.
(f) Schedule 1.1.(b) to the Credit Agreement is hereby superseded and replaced by Schedule 1.1.(b) attached to this Amendment.
Section 2. Conditions Precedent. The effectiveness of this Amendment is subject to receipt by the Agent of each of the following, each in form and substance satisfactory to the Agent:
(a) A counterpart of this Amendment duly executed by the Borrower and each of the Lenders;
(b) An Acknowledgment substantially in the form of Exhibit A attached hereto, executed by each Guarantor (the “Guarantor Acknowledgement”);
(c) An opinion of counsel to the Loan Parties addressed to the Agent and the Lenders covering such matters as the Agent may reasonably request;
(d) Evidence that all fees due and payable to the Lenders, and all fees and expenses payable to the Agent, in connection with this Amendment have been paid; and
(e) Such other documents, instruments and agreements as the Agent may reasonably request.
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Section 3. Representations. The Borrower represents and warrants to the Agent and the Lenders that:
(a) Authorization. The Borrower has the right and power, and has taken all necessary action to authorize it, to execute and deliver this Amendment and to perform its obligations hereunder and under the Credit Agreement, as amended by this Amendment, in accordance with their respective terms. This Amendment has been duly executed and delivered by a duly authorized officer of the Borrower and each of this Amendment and the Credit Agreement, as amended by this Amendment, is a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its respective terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability.
(b) Compliance with Laws, etc. The execution and delivery by the Borrower of this Amendment and the performance by the Borrower of this Amendment and the Credit Agreement, as
amended by this Amendment, in accordance with their respective terms, do not and will not, by the passage of time, the giving of notice or otherwise: (i) require any Government Approvals or violate any Applicable Laws (including Environmental Laws) relating to the Borrower or any other Loan Party; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of the Borrower or any other Loan Party, or any indenture, agreement or other instrument to which the Borrower or any other Loan Party is a party or by which it or any of its properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower or any other Loan Party.
(c) No Default. No Default or Event of Default has occurred and is continuing as of the date hereof or will exist immediately after giving effect to this Amendment.
Section 4. Reaffirmation of Representations by Borrower. The Borrower hereby repeats and reaffirms all representations and warranties made by the Borrower and the other Loan Parties to the Agent and the Lenders in the Credit Agreement and the other Loan Documents to which it is a party on and as of the date hereof with the same force and effect as if such representations and warranties were set forth in this Amendment in full.
Section 5. Certain References. Each reference to the Credit Agreement in any of the Loan Documents shall be deemed to be a reference to the Credit Agreement as amended by this Amendment.
Section 6. Expenses. The Borrower shall reimburse the Agent upon demand for all costs and expenses (including attorneys’ fees) incurred by the Agent in connection with the preparation, negotiation and execution of this Amendment and the other agreements and documents executed and delivered in connection herewith.
Section 7. Benefits. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
Section 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 9. Effect. Except as expressly herein amended, the terms and conditions of the Credit Agreement and the other Loan Documents remain in full force and effect. The amendments contained herein shall be deemed to have prospective application only, unless otherwise specifically stated herein.
Section 10. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns.
Section 11. Definitions. All capitalized terms not otherwise defined herein are used herein with the respective definitions given them in the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Credit Agreement to be executed as of the date first above written.
| THE BORROWER: |
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| HOSPITALITY PROPERTIES TRUST |
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| By: /s/ Mark L. Kleifges |
| Name: Mark L. Kleifges |
| Title: Treasurer |
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| THE AGENT AND THE LENDERS: |
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| WACHOVIA BANK, NATIONAL ASSOCIATION, |
| individually and as Agent |
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| By: /s/ Dean R. Whitehill |
| Name: Dean R. Whitehill |
| Title: Vice President |
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| THE ROYAL BANK OF SCOTLAND PLC |
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| By: /s/ Timothy J. McNaught |
| Name: Timothy J. McNaught |
| Title: Managing Director |
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| ROYAL BANK OF CANADA |
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| By: /s/ Dan LePage |
| Name: Dan LePage |
| Title: Authorized Signatory |
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[Signature Page to First Amendment to Amended and Restated
Credit Agreement with Hospitality Properties Trust]
| CALYON NEW YORK BRANCH |
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| By: /s/ Joseph A. Asciolla |
| Name: Joseph A. Asciolla |
| Title: Managing Director |
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| By: /s/ Authorized Signatory |
| Name: Authorized Signatory |
| Title: Director |
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| SUMITOMO MITSUI BANKING CORPORATION |
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| By: /s/ Masakazu Hasegawa |
| Name: Masakazu Hasegawa |
| Title: Joint General Manager |
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| SOCIETE GENERALE |
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| By: /s/ Michael P. Sassos |
| Name: Michael P. Sassos |
| Title: Director |
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[Signature Page to First Amendment to Amended and Restated
Credit Agreement with Hospitality Properties Trust]
| PNC BANK, NATIONAL ASSOCIATION |
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| By: /s/ Andrew D. Coler |
| Name: Andrew D. Coler |
| Title: Senior Vice President |
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| BANK OF MONTREAL |
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| By: /s/ Aaron Lanski |
| Name: Aaron Lanski |
| Title: Vice President |
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| MIZUHO CORPORATE BANK, LTD. |
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| By: /s/ Makoto Murata |
| Name: Makoto Murata |
| Title: Deputy General Manager |
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| UNITED OVERSEAS BANK LIMITED, |
| NEW YORK AGENCY |
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| By: /s/ George Lim |
| Name: George Lim |
| Title: FVP & General Manager |
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| By: /s/ Mario Sheng |
| Name: Mario Sheng |
| Title: AVP |
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[Signature Page to First Amendment to Amended and Restated
Credit Agreement with Hospitality Properties Trust]
| U.S. BANK NATIONAL ASSCOCIATION |
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| By: /s/ Joann St. Peter |
| Name: Joann St. Peter |
| Title: Vice President |
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| BANK OF CHINA, NEW YORK BRANCH |
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| By: /s/ Xiaojing Li |
| Name: Xiaojing Li |
| Title: General Manager |
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| AMSOUTH BANK |
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| By: /s/ Alan Browne |
| Name: Alan Browne |
| Title: Senior Vice President |
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| THE BANK OF NEW YORK |
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| By: /s/ David V. Fowler |
| Name: David V. Fowler |
| Title: Managing Director |
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[Signature Page to First Amendment to Amended and Restated
Credit Agreement with Hospitality Properties Trust]
| LAND BANK OF TAIWAN, LOS ANGELES BRANCH |
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| By: /s/ Henry Ching Rong Leu |
| Name: Henry Ching Rong Leu |
| Title: VP and General Manager |
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| SUNTRUST BANK |
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| By: /s/ W. John Wendler |
| Name: W. John Wendler |
| Title: Senior Vice President |
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| BANK OF TAIWAN, LOS ANGELES BRANCH |
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| By: /s/ Carol Tsai |
| Name: Carol Tsai |
| Title: Vice President and Deputy General Manager |
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| CHANG HWA COMMERCIAL BANK, LTD. |
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| By: /s/ Kang Yang |
| Name: Kang Yang |
| Title: AVP &AGM |
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[Signature Page to First Amendment to Amended and Restated
Credit Agreement with Hospitality Properties Trust]
| THE INTERNATIONAL COMMERCIAL BANK OF CHINA, LOS ANGELES BRANCH |
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| By: /s/ Michael C. C. Juang |
| Name: Michael C. C. Juang |
| Title: VP and Deputy GM |
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| THE INTERNATIONAL COMMERCIAL BANK OF CHINA, NEW YORK AGENCY (KNOWN AS “MEGA INTERNATIONAL COMMERICAL BANK NEW YORK AGENCY”) |
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| By: /s/ Nae-Yee Lung |
| Name: Nae-Yee Lung |
| Title: EVP and General Manager |
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| CHIAO TUNG BANK CO., LTD. |
| NEW YORK AGENCY(KNOWN AS “MEGA INTERNATIONAL COMMERICAL BANK NEW YORK AGENCY”) |
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| By: /s/ Nae-Yee Lung |
| Name: Nae-Yee Lung |
| Title: EVP and General Manager |
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| BANK OF AMERICA, N.A. |
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| By: /s/ Roger C. Davis |
| Name: Roger C. Davis |
| Title: Senior Vice President |
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[Signature Page to First Amendment to Amended and Restated
Credit Agreement with Hospitality Properties Trust]
| MERRILL LYNCH BANK USA |
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| By: /s/ Louis Adler |
| Name: Louis Adler |
| Title: Director |
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| BANK HAPOALIM B.M. |
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| By: /s/ Helen H. Gateson |
| Name: Helen H. Gateson |
| Title: Vice President |
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| By: /s/ Lenroy Hackett |
| Name: Lenroy Hackett |
| Title: First Vice President |
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| BANK OF COMMUNICATIONS CO., LTD., |
| NEW YORK BRANCH |
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| By: /s/ Shelley He |
| Name: Shelley He |
| Title: Deputy General Manager |
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[Signature Page to First Amendment to Amended and Restated
Credit Agreement with Hospitality Properties Trust]
| CITIZENS BANK OF MASSACHUSETTS |
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| By: /s/ Lisa Barry |
| Name: Lisa Barry |
| Title: Vice President |
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| COMERICA BANK |
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| By: /s/ Jessica L. Kempf |
| Name: Jessica L. Kempf |
| Title: Vice President |
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| THE FARMERS BANK OF CHINA, LOS ANGELES BRANCH |
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| By: /s/ Henry Po-Chang Ho |
| Name: Henry Po-Chang Ho |
| Title: Vice President & General Manager |
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| FIRST HAWAIIAN BANK |
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| By: /s/ Charles L. Jenkins |
| Name: Charles L. Jenkins |
| Title: Senior Vice President |
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[Signature Page to First Amendment to Amended and Restated
Credit Agreement with Hospitality Properties Trust]
| TAIPEI FUBON COMMERCIAL BANK CO., LTD. |
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| By: /s/ Herbert Lai |
| Name: Herbert Lai |
| Title: Senior Vice President/General Manager |
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| FIRST COMMERCIAL BANK, NEW YORK AGENCY |
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| By: /s/ Bruce M. J. Ju |
| Name: Bruce M. J. Ju |
| Title: VP & General Manager |
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| MORGAN STANLEY BANK |
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| By: /s/ Daniel Twenge |
| Name: Daniel Twenge |
| Title: Authorized Signatory |
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| REGIONS BANK |
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| By: /s/ Elaine B. Passman |
| Name: Elaine B. Passman |
| Title: Vice President |
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[Signature Page to First Amendment to Amended and Restated
Credit Agreement with Hospitality Properties Trust]
| HUA NAN COMMERCIAL BANK, LTD., |
| LOS ANGELES BRANCH |
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| By: /s/ Oliver C. H. Hsu |
| Name: Oliver C.H. Hsu |
| Title: VP and General Manager |
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| HUA NAN COMMERCIAL BANK, LTD., |
| NEW YORK BRANCH |
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| By: /s/ Te-Chin Wang |
| Name: Te-Chin Wang |
| Title: Assistant Vice President |
SCHEDULE 1.1(a)
Applicable Margin
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Level | Borrower’s Credit Rating (S&P/Moody’s (other)) | Applicable Margin for LIBOR Loans | Applicable Margin for Base Rate Loans |
| 1 | > BBB+/Baa1 (or equivalent) | 0.375% | 0.0% |
| 2 | BBB+/Baa1 (or equivalent) | 0.425% | 0.0% |
| 3 | BBB/Baa2 (or equivalent) | 0.55% | 0.0% |
| 4 | BBB-/Baa3 (or equivalent) | 0.75% | 0.0% |
| 5 | <BBB-/Baa3 (or equivalent) | 1.00% | 0.25% |
SCHEDULE 1.1(b)
Facility Fee
| Level | Facility Fee |
| 1 | 0.125% |
| 2 | 0.15% |
| 3 | 0.15% |
| 4 | 0.20% |
| 5 | 0.25% |
EXHIBIT A
FORM OF GUARANTOR ACKNOWLEDGEMENT
THIS GUARANTOR ACKNOWLEDGEMENT dated as of August 22, 2006 (this “Acknowledgment”) executed by each of the undersigned (the “Guarantors”) in favor of WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (the “Agent”) and each “Lender” a party to the Credit Agreement referred to below (the “Lenders”).
WHEREAS, Hospitality Properties Trust (the “Borrower”), the Lenders, the Agent and certain other parties have entered into that certain Credit Agreement dated as of May 23, 2005 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, each of the Guarantors is a party to that certain Guaranty dated as of May 23, 2005 (as amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”) pursuant to which they guarantied, among other things, the Borrower’s obligations under the Credit Agreement on the terms and conditions contained in the Guaranty;
WHEREAS, the Borrower, the Agent and the Lenders are to enter into a First Amendment to Amended and Restated Credit Agreement dated as of the date hereof (the “Amendment”), to amend the terms of the Credit Agreement on the terms and conditions contained therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Amendment that the Guarantors execute and deliver this Acknowledgment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
Section 1. Reaffirmation. Each Guarantor hereby reaffirms its continuing obligations to the Agent and the Lenders under the Guaranty and agrees that the transactions contemplated by the Amendment shall not in any way affect the validity and enforceability of the Guaranty, or reduce, impair or discharge the obligations of such Guarantor thereunder.
Section 2. Governing Law. THIS ACKNOWLEDGEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Counterparts. This Acknowledgement may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns.
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Acknowledgement as of the date and year first written above.
THE GUARANTORS:
| HH HPT Suite Properties LLC |
| HH HPTCW II Properties LLC |
| HH HPTCY Properties LLC |
| HH HPTMI III Properties LLC |
| HH HPTRI Properties LLC |
| HH HPTWN Properties LLC |
| HPT CW Properties Trust |
| HPT HSD Properties Trust |
| HPT IHG Canada Properties Trust |
| HPT IHG GA Properties LLC |
| HPT IHG PR, Inc. |
| HPT IHG Properties Trust |
| HPT IHG-2 Properties Trust |
| HPTLA Properties Trust |
| HPT Smokey Mountain LLC |
| HPT Suite Properties Trust |
| HPTCY Properties Trust |
| HPTMI Hawaii, Inc. |
| HPTMI II Properties Trust |
| HPTMI Properties Trust |
| HPTRI Properties Trust |
| HPTSHC Properties Trust |
| HPTSY Properties Trust |
| HPTWN Properties Trust |
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| By: |
| Name: Mark L. Kleifges |
| Title: Treasurer |
