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EXHIBIT 10.31.1
FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
("Amendment") is dated as of January 26, 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,
XXXXX 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.
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into that certain Amended and
Restated Revolving Credit Agreement dated as of October 10, 1997 (the "Credit
Agreement") providing for loans to the Borrower not to exceed $200,000,000 at
any time outstanding; and
WHEREAS, the parties desire to amend the Credit Agreement to increase
the total Commitments to $300,000,000 and to modify certain other provisions of
the Credit Agreement, 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.
1.1 Terms used herein and not defined herein shall have the meanings
provided therefor in the Credit Agreement.
1.2 The definitions of the following terms in the Credit Agreement are
hereby amended as follows:
(a) The definition of the term "Aggregate Value" is hereby
amended and restated in its entirety as follows:
"Aggregate Value" means, with respect to an Eligible
Hotel, at any date, the aggregate value thereof to be
calculated as follows:
(a) For a Seasoned Property or a Special Property,
(i) the Adjusted NOI for such Seasoned Property or Special
Property
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for the preceding four (4) Fiscal Quarters divided by (ii) ten
and one-half percent (10.5%); and
(b) For a New Property (other than a Special
Property), the Borrower's Investment in such New Property.
(b) The definition of the term "Applicable Letter of Credit
Rate" is hereby amended and restated in its entirety as follows:
"Applicable Letter of Credit Rate" means one and
four-tenths percent (1.40%) per annum.
(c) The definition of the term "Applicable Margin" is hereby
amended and restated in its entirety as follows:
"Applicable Margin" means, (a) with respect to each
Loan made, continued or converted at any date prior to the
first Pricing Date occurring after December 31, 1997, (i)
0.375% with respect to Base Rate Loans and (ii) 1.8% with
respect to Eurodollar Rate Loans; (b) with respect to each
Loan made, continued or converted at any date from and after
the first Pricing Date occurring after December 31, 1997, the
applicable percentage per annum set forth below based upon the
Status in effect at the time such Loan is made, continued or
converted, it being understood that the Applicable Margin for
(i) Base Rate Loans shall be the percentage set forth under
the column "Base Rate Loans," and (ii) Eurodollar Rate Loans
shall be the percentage set forth under the column "Eurodollar
Rate Loans;" and (c) with respect to the Unused Commitment Fee
from and after the first Pricing Date occurring after December
31, 1997, the applicable percentage per annum set forth below
under the column, "Unused Commitment Fee," based upon the
Status then in effect.
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Unused
Base Rate Eurodollar Commitment
Loans Rate Loans Fee
--------- ---------- ----------
Level I Status 0.0% 1.00% 0.125%
Level II Status 0.0% 1.125% 0.15%
Level III Status 0.0% 1.25% 0.15%
Level IV Status 0.0% 1.375% 0.20%
Level V Status 0.0% 1.40% 0.20%
Level VI Status 0.0% 1.50% 0.20%
Level VII Status 0.125% 1.625% 0.25%
Level VIII Status 0.25% 1.75% 0.30%
(d) The definition of the term "Borrowing Base" is hereby
amended by changing the reference "40%" to "45%."
(e) The definition of the term "Debt Service Coverage Ratio"
is hereby deleted.
(f) The definition of the term "Eligible Hotels" is hereby
amended by changing the reference "ten percent (10%)" in subparagraph
(ii)(E) to "fifteen percent (15%)."
(g) The definition of the term "Minimum Tangible Net Worth" is
hereby amended and restated in its entirety as follows:
"Minimum Tangible Net Worth" means, with respect to
the Borrower, at any time, the sum of $370,000,000 plus (a)
85% of the aggregate net proceeds received by Sunstone or any
of its Subsidiaries after December 31, 1997 in connection with
any offering of Stock or Stock Equivalents of Sunstone or its
Subsidiaries taken as a whole and (b) 85% of the consideration
for any partnership interests in Borrower issued for the
acquisition of a Hotel or any interest in a Hotel permitted
hereunder.
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(h) The definition of the term "Status" is hereby amended and
restated in its entirety as follows:
"Status" means the existence of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status,
Level VI Status, Level VII Status or Level VIII Status, as the
case may be. As used in this definition (and subject to the
provisions set forth below):
"Level I Status" exists at any date if, at such date,
Sunstone has a long-term senior unsecured actual or implied
debt rating of A- or better by S&P and A3 or better by
Xxxxx'x;
"Level II Status" exists at any date if, at such
date, Sunstone has a long-term senior unsecured actual or
implied debt rating of BBB+ by S&P and Baa1 by Xxxxx'x;
"Level III Status" exists at any date if, at such
date, Sunstone has a long-term senior unsecured actual or
implied debt rating of BBB by S&P and Baa2 by Xxxxx'x;
"Level IV Status" exists at any date if, at such
date, Sunstone has a long-term senior unsecured actual or
implied debt rating of BBB- by S&P and Baa3 by Xxxxx'x;
"Level V Status" exists at any date if, at such date,
(i) neither Level IV Status nor any Status above Level IV
Status exists and (ii) Sunstone has a Leverage Ratio of less
than 25%;
"Level VI Status" exists at any date if, at such
date, (i) neither Level IV Status nor any Status above Level
IV Status exists and (ii) Sunstone has a Leverage Ratio of 25%
or more but less than 35%:
"Level VII Status" exists at any date if, at such
date, (i) neither Level IV Status nor any Status above Level
IV Status exists and (ii) Sunstone has a Leverage Ratio of 35%
or more, but less than 40%; and
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"Level VIII Status" exists at any date if, at such
date, (i) neither Level IV Status nor any Status above Level
IV Status exists and (ii) Sunstone has a Leverage Ratio of 40%
or more, but less than 45%.
The determination of Status shall be subject to the
following: (i) if S&P and/or Xxxxx'x shall cease to issue
ratings of debt securities of REITs generally or (after
issuing ratings with respect to Sunstone) shall cease to issue
ratings with respect to Sunstone, then the Administrative
Agent and the Borrower shall negotiate in good faith to agree
upon a substitute rating agency or agencies (and to correlate
the system of ratings of each substitute rating agency with
that of the rating agency for which it is substituting) and
(a) until such substitute rating agency or agencies are agreed
upon, Status (to the extent based upon such ratings) shall be
determined on the basis of the rating assigned by the other
rating agency, and if both S&P and Xxxxx'x shall have ceased
to issue such ratings, Status shall be determined based on the
Leverage Ratio (and accordingly shall not be higher than Level
V Status) and (b) after such substitute rating agency or
agencies are agreed upon, Status (to the extent based upon
such ratings) shall be determined on the basis of the rating
assigned by the other rating agency and such substitute rating
agency or the two substitute rating agencies, as the case may
be; (ii) if the long-term senior unsecured actual or implied
debt ratings of Sunstone by S&P and Xxxxx'x (or, if
applicable, any substitute agency or agencies designated as
provided in clause (i)) are not equivalent, the lower rating
will apply for the purposes of determining Status (to the
extent that Status is based upon such ratings); (iii) if the
long-term senior unsecured actual or implied debt ratings of
Sunstone by S&P and Xxxxx'x (or, if applicable, any substitute
agency or agencies designated as provided in clause
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(i)) are two or more Levels apart, the rating one Level above
the lower rating will apply for the purposes of determining
Status (to the extent that Status is based upon such ratings);
(iv) the initial determination of Status pursuant hereto shall
be effective from and after the first Pricing Date occurring
after December 31, 1997; (v) changes in Status resulting from
a change in the unsecured actual or implied debt ratings of
Sunstone shall be effective on the first Business Day
following any such change; and (vi) changes in Status
resulting from a change in the Leverage Ratio shall be
effective on the Pricing Date next following the applicable
Fiscal Quarter with respect to which such Leverage Ratio is
determined.
1.3 The following terms have the following meanings when used in the
Credit Agreement as amended hereby:
"Leverage Ratio" means, at the end of any Fiscal Quarter from
and after the Fiscal Quarter ending December 31, 1997, the ratio
(expressed as a percentage) of (a) the Total Indebtedness of Sunstone
at the end of such Fiscal Quarter to (b) the Total Hotel Value at the
end of such Fiscal Quarter.
"Preferred Debt Service Coverage Ratio" has the meaning
provided therefor in Section 6.2.
"Pricing Date" means, with respect to any determination of
Status based on the Leverage Ratio, the first day of the calendar month
next following the date on which the Borrower is required to deliver to
the Administrative Agent the quarterly financial statements provided
for in Section 7.11(a) for the Fiscal Quarter with respect to which the
Leverage Ratio is to be so determined and the Compliance Certificate
provided for in Section 7.11(e) setting forth the Leverage Ratio as of
the end of such Fiscal Quarter; provided that (i) if any of such
quarterly financial statements or Compliance Certificate are delivered
to the Administrative Agent later than the date on which required to be
delivered and the Leverage Ratio determined pursuant thereto would
result in a change in Status to a higher level, the Pricing Date shall
not occur until the tenth day following the Administrative
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Agent's receipt thereof and (ii) if the annual audited financial
statements delivered by the Borrower pursuant to Section 7.11(b) for
any Fiscal Year evidence a Leverage Ratio for the fourth quarter of
such Fiscal Year that would result in a Status that is different than
the Status evidenced by the quarterly financial statements for the
fourth Fiscal Quarter of such Fiscal Year delivered by the Borrower,
Status shall be adjusted to conform to the Leverage Ratio determined on
the basis of such annual audited financial statements from and after
the tenth day following the Administrative Agent's receipt of such
annual audited financial statements and, if such adjustment results in
a Status at a lower level than in effect since the most recent Pricing
Date, such adjustment shall be retroactive to such Pricing Date, in
which event the Borrower shall pay to the Administrative Agent on
demand any additional interest resulting from such retroactive
adjustment.
"Special Property" means an Eligible Hotel that is designated
by the Borrower as a "Special Property" in accordance with the
provisions of Section 7.23(h).
"Total Hotel Value" means, at any date, the aggregate value of
all Hotels owned by the Borrower or any of its direct or indirect
wholly-owned Subsidiaries, such value to be calculated as follows:
(a) For all Seasoned Properties, (i) the Adjusted NOI for such
Seasoned Properties for the preceding four (4) Fiscal Quarters divided
by (ii) ten and one-half percent (10.5%); and
(b) For all New Properties, the Borrower's Investment in such
New Properties.
"Unused Commitment Fee Rate" means (i) until the first Pricing
Date to occur after December 31, 1997, 0.25% per annum and (ii) from
and after the first Pricing Date to occur after December 31, 1997, a
rate per annum equal to the Applicable Margin with respect to the
Unused Commitment Fee.
2. Increase of Commitments. The aggregate amount of the Commitments is
hereby increased to $300,000,000, and from and after the date hereof the
Commitment of each Lender is as set
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forth in Schedule II attached hereto and hereby incorporated herein, which
replaces Schedule II to the Credit Agreement.
3. Unused Commitment Fee. Section 2.4(a) is hereby amended by changing
the reference "0.25%" to "the Unused Commitment Fee Rate on the date on which
such payment is due."
4. Trigger Date. Section 3.4(a) is amended and restated in its entirety
as follows:
(a) In the event that, at the end of any Fiscal Quarter (the
"Trigger Date") commencing with the Fiscal Quarter ending on December
31, 1997, the Borrower shall fail to maintain an Interest Coverage
Ratio of 2.5 to 1.0 or a Preferred Debt Service Coverage Ratio of 2.0
to 1.0, such failure shall not constitute an Event of Default if and
for as long as (i) the Borrower shall maintain an Interest Coverage
Ratio of not less than 2.0 to 1.0 and a Preferred Debt Service Coverage
Ratio of not less than 1.5 to 1.0 and (ii) the Borrower shall or shall
cause Sunstone or the Eligible Hotel Owners (as applicable) to execute
and deliver to the Administrative Agent with respect to each of the
Eligible Hotels (A) within seventy-five (75) days of the Trigger Date,
the documents set forth in Section 3.4(b) and (B) within 135 days of
the Trigger Date, the documents set forth in Section 3.4(c).
5. Facility Letters of Credit. Section 4.2(ii) is hereby amended by
changing the reference "$15,000,000" to "$30,000,000" and the reference
"$20,000,000" to "$40,000,000."
6. Use of Proceeds. Section 5.18 is hereby amended by changing the
reference "$20,000,000" to "$40,000,000."
7. Financial Covenants. (a) Section 6.1 is hereby amended by changing
the reference "3.0 to 1.0" to "2.5 to 1.0."
(b) Section 6.2 is hereby amended and restated in its entirety as
follows:
6.2 Preferred Debt Service Coverage Ratio. Sunstone shall maintain at
the end of each
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Fiscal Quarter, commencing with the Fiscal Quarter ending December 31,
1997, a ratio ("Preferred Debt Service Coverage Ratio") of (a) Adjusted
EBITDA to (b) the sum of (i) Debt Service and (ii) dividends paid by
Sunstone on any of its preferred Stock, in each case determined on the
basis of the four (4) Fiscal Quarters ending on the date of
determination, of not less than 2.0 to 1.0, except as otherwise
provided in Section 3.4(a).
(c) Section 6.4 is hereby amended (i) by changing in subparagraph (i)
thereof the phrase "multiplied by four (4)" to "multiplied by four and one-half
(4-1/2)" and (ii) by changing, in both subparagraph (i) and subparagraph (ii)
thereof, the references "forty percent (40%)" to "forty-five percent (45%)."
(d) Section 6.7 is hereby amended by changing the reference "85%" to
"90%."
8. Financial Statements. (a) Section 7.11(a) is hereby amended by
changing the phrase "each of the first three Fiscal Quarters of each Fiscal
Year" to "each Fiscal Quarter."
(b) After the date of this Amendment, each Compliance Certificate
delivered shall reflect the amendments to the Credit Agreement provided for
herein, all in a manner satisfactory to the Required Lenders, and, without
limitation of the foregoing, shall include calculations of the Leverage Ratio,
Preferred Debt Service Coverage Ratio and Total Hotel Value and the
identification of any Eligible Hotels that are designated as Special Properties.
(c) Section 7.11(d) is hereby amended by adding the following provision
immediately following clause (ii) thereof:
and (iii) financial projections for each of the succeeding four Fiscal
Quarters, including projected balance sheets at the end of each such
Fiscal Quarter, projected statements of income and cash flow for each
such Fiscal Quarter and projected compliance with covenants hereunder
at the end of each such Fiscal Quarter;
9. Borrowing Base Determination/Requirements. The following is hereby
added to the Agreement as Section 7.23(h):
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(h) Prior to the date on which, by reason of the duration of
ownership thereof by the applicable Eligible Hotel Owner, a Renovating
Property ceases to be a Renovating Property or any other New Property
ceases to be a New Property, the Borrower may designate such Renovating
Property or other New Property as a "Special Property" on and subject
to the following terms and conditions:
(i) Such designation shall be made in writing and delivered to
the Administrative Agent prior to or along with the first Compliance
Certificate delivered to the Administrative Agent that sets forth the
Aggregate Value of such Eligible Hotel as determined as a Special
Property;
(ii) Such designation shall be irrevocable, and such Eligible
Hotel shall from and after such designation continue to be a Special
Property until such time as it becomes a Seasoned Property;
(iii) The designation of such Eligible Hotel as a Special
Property shall be solely for the purpose of determining the Aggregate
Value of such Eligible Hotel and shall not otherwise affect such
Eligible Hotel's status as a Renovating Property or other New Property
hereunder; and
(iv) A Renovating Property may not be designated as a Special
Property prior to the last day of the Fiscal Quarter in which the
renovation of such Renovating Property is substantially completed.
10. Additional Indebtedness. The following new Section 7.24 is hereby
added to the Credit Agreement:
7.24 Approval of Additional Indebtedness. In the event that
the Borrower desires to seek from the Lenders approval of any proposed
Indebtedness not permitted under the provisions of Section 8.2, the
Borrower
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shall furnish to the Lenders such information as the Lenders may
request with respect thereto, which may include without limitation (a)
a summary of the terms and conditions of such proposed Indebtedness;
(b) a pro forma Compliance Certificate prepared taking into account
such proposed Indebtedness; (c) a pro forma calculation with respect to
the Borrower's compliance with the covenants intended to be included in
such proposed Indebtedness; (d) a detailed description of the intended
use of proceeds of such Indebtedness; and (e) copies of the
documentation evidencing such Indebtedness, which documentation shall
evidence to the satisfaction of the Lenders that such Indebtedness is
not secured in whole or in part and is subordinate to, or pari passu
with, the Obligations. Neither the provisions of this Section 7.24 nor
the Borrower's delivery to the Lenders of a request for approval of
such proposed Indebtedness, whether in accordance with this Section
7.24 or otherwise, shall modify, limit or otherwise affect the
provisions of Section 8.2.
11. Limitations on Development, Construction, Renovation and Purchase
of Hotels. Section 8.5 is hereby amended and restated in its entirety as
follows:
8.5 Limitations on Development, Construction, Renovation and
Purchase of Hotels. Neither Sunstone nor the Borrower shall or shall
permit any of their respective Subsidiaries to (a) engage in the
development or construction of any Hotels with respect to which the
cost to complete the same shall at any time exceed, for all such
development and construction in the aggregate, the lesser of (i) ten
percent (10%) of Total Hotel Value and (ii) $50,000,000, (b) engage in
the renovation (including construction of additions) of any Hotels with
respect to which the cost to complete the same shall at any time exceed
in the aggregate the lesser of (i) fifteen percent (15%) of Total Hotel
Value and (ii) $100,000,000, or (in the
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aggregate with costs described in clause (a)) the lesser of (A) twenty
percent (20%) of Total Hotel Value and (B) $125,000,000, or (c) engage
in the development or construction of Hotels (without regard to whether
the same is permitted under clauses (a) or (b) above) to enter into any
agreements to purchase Hotels or other assets, unless Sunstone, the
Borrower or such Subsidiary (as applicable) at all times has available
sources of capital equal to the total cost to complete such development
or construction and to pay in full the cost of the purchase of such
Hotels or other assets (to the extent that the payment of such cost of
purchase constitutes a recourse obligation of Sunstone, the Borrower or
its Subsidiary), which available sources of capital may include the
Available Credit to the extent that the Borrower may borrow the same
for the purposes required.
12. Closing Deliveries. Prior to or simultaneously with the execution
and delivery of this Amendment, and as a condition to this Amendment, the
Borrower shall deliver to the Administrative Agent the following:
(a) Payment of the fees provided for in the letter agreement
dated January 14, 1998 and of all costs and expenses (including
reasonable attorneys' fees and expenses) incurred in connection with
this Amendment;
(b) Notes payable to those Lenders whose Commitments have
increased, each such Note to be in the amount of such Lender's
increased Commitment;
(c) The Consent of Guarantors attached to this Amendment; and
(d) Certificates of good standing, certified corporate
resolutions and incumbency certificates with respect to, and opinions
of counsel for, the Borrower and Sunstone, all in form and substance
satisfactory to the Administrative Agent.
13. Ratification. The Credit Agreement (as amended hereby) and the
other Loan Documents (as amended as herein provided) are hereby ratified and
remain in full force and effect.
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14. Execution in Counterparts. This Amendment may be executed in any
number of 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 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: /s/ XXXXXX X. ALTER
-------------------------------------
Name: Xxxxxx X. Alter
Title: President
LENDER:
BANK ONE, ARIZONA, NA
as Administrative Agent, Co-Agent,
Issuing Bank and Lender
By: /s/ XXXX X. XXXXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Vice President
CREDIT LYONNAIS NEW YORK BRANCH
as Documentation Agent, Co-Agent
and Lender
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Syndication Agent, Co-Agent and
Lender
By: /s/ XXXXX XXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as Lender
By: /s/ XXXX X. XXXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY,
as Lender
By: /s/ XXXXXX X. DAY
-------------------------------------
Name: Xxxxxx X. Day
Title: Vice President
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CONSENT OF GUARANTORS
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 January, 1998.
Sunstone Hotel Investors, Inc.
By: /s/ XXXXXX X. ALTER
------------------------
Its: PRESIDENT
------------------------
/s/ XXXXXX X. ALTER
-----------------------------
Xxxxxx X. Alter
/s/ XXXXXXX XXXXXXXXX
-----------------------------
Xxxxxxx Xxxxxxxxx
/s/ XXXXXX X. XXXXXXXX
-----------------------------
Xxxxxx X. Xxxxxxxx
/s/ XXXXXX X. XXXXX
-----------------------------
Xxxxxx X. Xxxxx
/s/ C. XXXXXX XXXXXX
-----------------------------
C. Xxxxxx Xxxxxx
Peacock, LLC
By: /s/ XXXXXX XXXXX
------------------------
Its: Member
------------------------
Xxxxxxx, L.L.C.
By: /s/ XXXXXX XXXXX
------------------------
Its: Member
------------------------
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SCHEDULE II
COMMITMENTS
Lender Commitment
------ ----------
Bank One, Arizona, NA $ 70,666,666.67
Credit Lyonnais New York Branch $ 70,666,666.67
Xxxxx Fargo Bank, National $ 96,666,666.66
Association
Dresdner Bank AG, New York $ 35,000,000.00
and Grand Cayman Branches
Societe Generale, Southwest $ 27,000,000.00
Agency ---------------
TOTAL: $300,000,000.00
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