FIRST AMENDMENT TO AMENDED AND RESTATED SECURED CREDIT AGREEMENT

EX-10.17 4 w06773exv10w17.htm EX-10.17 exv10w17

Exhibit 10.17

FIRST AMENDMENT TO
AMENDED AND RESTATED SECURED CREDIT AGREEMENT

FIRST AMENDMENT TO AMENDED AND RESTATED SECURED CREDIT AGREEMENT (this “Amendment”), dated as of February 4, 2005 (the “Amendment Date”), is among INTERSTATE OPERATING COMPANY, L.P., a Delaware limited partnership, as the Borrower (“Borrower”); the Guarantors; SOCIETE GENERALE, as Administrative Agent (the “Administrative Agent”); and the Lenders a party hereto.

RECITALS:

A. The Borrower; the Administrative Agent; the Lenders and certain other parties are party to that certain Amended and Restated Senior Secured Credit Agreement dated as of January 14, 2005 (the “Original Credit Agreement”).

B. The parties hereto desire to amend the Original Credit Agreement and the other Credit Documents (as defined in the Original Credit Agreement) as hereinafter provided.

NOW, THEREFORE, for and in consideration of the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. All terms used in this Amendment, but not defined herein, shall have the meaning given such terms in the Original Credit Agreement.

2. This Amendment shall become effective as of the Amendment Date if on or prior to the close of business on February 8, 2005 (the “Termination Date”) the following conditions precedent have been satisfied:

	a.	Documentation. The Administrative Agent shall have received counterparts of this Amendment executed by the Borrower, the Guarantors and the Required Lenders (and with respect to the amendments contained in Paragraph 7 only the consent of each of the Revolving Required Lenders and the Term Required Lenders voting as separate classes).

	b.	Representations and Warranties. The representations and warranties contained in this Amendment, and in each Credit Document shall be true and correct in all material respects both as of the Amendment Date and the date the other conditions to this Amendment’s effectiveness are satisfied except for changes which individually or in the aggregate do not constitute a Material Adverse Change.

	c.	No Default. No Default or Event of Default shall exist as of either the Amendment Date or the date the other conditions to this Amendment’s effectiveness are satisfied.

Fees. The Administrative Agent shall have received for the benefit of each Lender that executes and delivers this Amendment to the Administrative Agent’s counsel by 5:00 p.m. EST on the Termination Date an amendment fee equal to fifteen (15) basis points times the sum of such Lender’s Term Advances and Revolving Commitment.

If this Amendment does not become effective prior to the Termination Date, this Amendment shall be null and void; provided however that the Borrower shall still be obligated to reimburse Societe Generale for costs and expenses incurred in connection with this Amendment.

3. The term “Credit Agreement” as used in the Credit Documents, shall mean the Original Credit Agreement, as amended by this Amendment.

4. The following definitions shall be added to the Credit Agreement in the correct alphabetical order:

“Concord Property” means the Hilton Concord in Concord, California.

“Concord Transaction” means (a) the acquisition by a Permitted Other Subsidiary of the Concord Property using the proceeds of Permitted Other Indebtedness and Advances, and (b) following such acquisition, the possible sale, transfer, assignment, or contribution of the Concord Property to one or more Investment Funds.

“Investment Fund” means a fund or funds referred to in clause (c) of the definition of Permitted New Investments.

5. Section 7.01 of the Credit Agreement is deleted in its entirety and replaced with the following:

“Section 7.01 Interest Coverage Ratio. The Parent shall maintain at the end of each Rolling Period (a) for the Rolling Periods ending on September 30, 2004, December 31, 2004 and March 31, 2005, an Interest Coverage Ratio of not less than 3.00 to 1.00, and (b) for any Rolling Period thereafter, an Interest Coverage Ratio of not less than 3.50 to 1.00.”

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6. Section 7.02 of the Credit Agreement is deleted in its entirety and replaced with the following:

“Section 7.02 Leverage Ratio. The Parent shall not on any date permit the Leverage Ratio to exceed during the applicable period indicated in the following chart the amount set forth in such chart for such period:


Beginning Date of Applicable Period	Ending Date of Applicable Period	Leverage Ratio

Closing Date	May 14, 2005	4.50 to 1.00
May 15, 2005	The day immediately prior to the Status Reset Date during the Fiscal Quarter commencing April 1, 2005	3.75 to 1.00
The Status Reset Date during the Fiscal Quarter commencing April 1, 2005	The day immediately prior to the Status Reset Date during the Fiscal Quarter commencing January 1, 2006	3.50 to 1.00
The Status Reset Date during the Fiscal Quarter commencing January 1, 2006	No ending date	3.00 to 1.00

Notwithstanding the foregoing, (a) if prior to May 15, 2005 the transaction contemplated by clause (b) in the definition of Concord Transaction occurs, then the 4.50 to 1.00 ratio set forth in the preceding chart shall be changed to 3.75 to 1.00 on the date of such occurrence, (b) if prior to May 15, 2005 the Parent, the Borrower or any of their respective Subsidiaries acquires Investments under clause (a) or (d) of the definition of Permitted New Investments for which either (i) the Investment Amount equals or exceeds $4,000,000 or (ii) the expected one year EBITDA for such Investment is expected to equal or exceed $3,000,000, then the 4.50 to 1.00 ratio set forth in the preceding chart shall be changed to 4.25 to 1.00 on the date of such occurrence, and (c) if the events in both the preceding clauses (a) and (b) occur prior to May 15, 2005, then the 4.50 to 1.00 ratio set forth in the preceding chart shall be changed to 3.75 to 1.00 on the date of such occurrence.”

7. Section 2,07 of the Credit Agreement is amended to provide that if the transaction contemplated by clause (b) in the definition of Concord Transaction occurs, then the Net Cash Proceeds from such transaction shall be applied to reduce the outstanding Revolving Advances

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(without any reduction in Revolving Commitments), and to the extent such Net Cash Proceeds exceed the outstanding Revolving Advances, such excess shall be applied in accordance with the other provisions of Section 2.07.

8. The parties to this Amendment acknowledge and agree that (a) the amendments contained in Paragraph 7, but not the other amendments contained in this Amendment, require the consent of each of the Revolving Required Lenders and the Term Required Lenders voting as separate classes, and (b) if such consents are not obtained, but the consents of the Required Lenders to this Amendment are obtained and the other conditions precedent to the effectiveness of this Amendment are satisfied, then this Amendment shall be effective for all the amendments contemplated herein other than the amendments contained in Paragraph 7.

9. Each party hereto represents to the other parties hereto that such party is authorized to execute this Amendment. In addition, the Borrower and the Guarantors represent and warrant to the Lenders and the Administrative Agent that (a) the representations and warranties contained in this Amendment, and in each Credit Document are true and correct in all material respects as of the Amendment Date except for changes which individually or in the aggregate do not constitute a Material Adverse Change, (b) no Default or Event of Default exists as of the Amendment Date except for any such Default or Event of Default as is expressly waived or eliminated by this Amendment, and (c) such Persons have no claims, offsets, or counterclaims with respect to their respective obligations under the Credit Documents as of the Amendment Date.

10. This Amendment may be executed in multiple counterparts, each of which shall be an original, but all of which shall constitute but one Amendment. Facsimile signatures will be deemed to be original signatures.

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