Exhibit 99.1 AMENDMENT AND RESTATEMENT AMENDMENT AND RESTATEMENT (this "Amendment and Restatement"), dated as of December 31, 1998, among PATRIOT AMERICAN HOSPITALITY, INC., a Delaware corporation ("Patriot REIT"), PATRIOT AMERICAN HOSPITALITY...
Exhibit 99.1
AMENDMENT AND RESTATEMENT
AMENDMENT AND RESTATEMENT (this "Amendment and Restatement"),
dated as of December 31, 1998, among PATRIOT AMERICAN HOSPITALITY, INC., a
Delaware corporation ("Patriot REIT"), PATRIOT AMERICAN HOSPITALITY PARTNERSHIP,
L.P., a Virginia limited partnership ("Patriot OP", and together with Patriot
REIT, the "Borrowers", and each individually, a "Borrower"), the lenders party
to the Credit Agreement referred to below (the "Lenders"), XXXXX XXXXXX REAL
ESTATE SECURITIES, INC. ("Xxxxx Xxxxxx") as Arranger (the "Arranger") and CHASE
SECURITIES INC. ("CSI"), as Book Manager and as Lead Arranger (the "Lead
Arranger" and together with Xxxxx Xxxxxx the "Arrangers"), CITIBANK, N.A.
("Citibank"), BANKERS TRUST COMPANY ("BTCo"), and CREDIT LYONNAIS NEW YORK
BRANCH ("Credit Lyonnais") as Documentation Agents, (each a "Documentation
Agent", and together the "Documentation Agents"), XXXXX XXXXXX, as Syndication
Agent (the "Syndication Agent") and CHASE MANHATTAN BANK ("Chase"), as
Administrative Agent (the "Administrative Agent"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings provided
such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrowers, the Lenders, the Arrangers, the
Documentation Agents, the Syndication Agent and the Administrative Agent are
parties to the Amended and Restated Credit Agreement, dated as of July 18, 1997,
amended and restated as of December 16, 1997 and further amended and restated as
of June 2, 1998 (as amended through the date hereof, the "Credit Agreement");
and
WHEREAS, the Borrowers have requested that the undersigned
Lenders provide the amendments, waivers, consents and agreements provided for
herein and such Lenders have agreed to provide such amendments, waivers,
consents and agreements on the terms and conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. The Tranche I Term Loan Maturity Date and the Tranche II
Term Loan Maturity Date shall be extended, in the case of the Tranche I Term
Loan Maturity Date, to March 31, 1999 (the "Initial Maturity Extension") and, in
the case of the Tranche I Term Loan Maturity Date and the Tranche II Term Loan
Maturity Date, June 30, 1999 (the "Subsequent Maturity Extension"), as
applicable, by amending the definitions of "Tranche I Term Loan Maturity Date"
and "Tranche II Term Loan Maturity Date" contained in Section 11 of the Credit
Agreement to read in their entirety as follows:
"Tranche I Term Loan Maturity Date" shall mean (x)
March 31, 1999 and (y) upon the occurrence of the events described in
the following proviso (the "Subsequent Maturity Extension Conditions"),
June 30, 1999; PROVIDED that, the Tranche I Term Loan
2 Page
Maturity Date shall automatically be extended if on or prior to
February 15, 1999, (i) Borrowers shall have entered into definitive
equity agreements, on terms and conditions which (in the reasonable
judgment of the Administrative Agent) shall be consistent with the
letter dated December 15, 1998 between the Borrowers and certain
proposed investors (the "Letter of Intent") and on terms and
conditions which are customary for transactions of this type (the
"Definitive Equity Agreements") pursuant to which new equity capital
shall be provided to the Borrowers on terms consistent with the Letter
of Intent and (ii) the maturities and amortization requirements of all
other Indebtedness of the Borrowers, the Guarantors and their
Subsidiaries (other than (x) the Indebtedness described as item 1 on
Schedule I hereto and (y) the amortizations described as item 26 on
Schedule I hereto) and all obligations to pay cash or deliver assets,
debt or other consideration (other than common stock of Patriot and
Wyndham) under existing Permitted Equity Swaps, shall have been
extended to dates which are on or after June 30, 1999.
"Tranche II Term Loan Maturity Date" shall mean (x)
March 31, 1999 and (y) upon the satisfaction of the Subsequent Maturity
Extension Conditions, June 30, 1999.
3 Page
2. The definition of "Applicable Margin" contained in Section
11 of the Credit Agreement is hereby modified by deleting the pricing grid
contained therein and inserting the following pricing grid in lieu thereof:
" REVOLVING LOANS, SWINGLINE LOANS AND
TRANCHE I, II, III TERM LOANS
------------------------------------
TRANCHE B LOANS
---------------
Base Rate Eurodollar Base Rate Eurodollar
LOANS RATE LOANS COMMITMENT FEE LOANS RATE LOANS
--------- ---------- -------------- --------- ----------
Level I 0% 1.50% 0.125% 1.50% 3.00%
Status
Level II .125% 1.625% 0.15% 1.50% 3.00%
Status
Level III .25% 1.75% 0.15% 1.50% 3.00%
Status
Level IV .375% 1.875% 0.20% 1.50% 3.00%
Status
Level V .50% 2.00% 0.20% 1.50% 3.00%
Status
Level VI 0.70% 2.20% 0.25% 1.50% 3.00%
Status
Level VII 0.85% 2.35% 0.30% 1.50% 3.00%
Status
Level VIII 1.00% 2.50% 0.35% 1.50% 3.00%
Status
Level IX 1.25% 2.75% 0.40% 1.50% 3.00%
Status
4 Page
3. The following new definitions are hereby inserted into
Section 11 of the Credit Agreement in appropriate alphabetical order:
"Amendment and Restatement" shall mean the Amendment
and Restatement to this Agreement, dated as of December 31, 1998.
"Amendment and Restatement Effective Date" shall mean
the Amendment and Restatement Effective Date defined in the Amendment
and Restatement.
"Definitive Equity Agreements" shall have the meaning
provided in the definition of Tranche I Term Loan Maturity Date.
"Letter of Intent" shall have the meaning provided in
the definition of Tranche I Term Loan Maturity Date.
"Subsequent Maturity Extension Conditions" shall have
the meaning provided in the definition of Tranche I Term Loan Maturity
Date.
4. Section 1.01(e) of the Credit Agreement is hereby amended
by inserting the following sentence at the end of Section (e) hereof:
"In addition, on the Amendment and Restatement
Effective Date, Chase agrees to make a Tranche B Term Loan in an amount
not to exceed $50 million (as identified by Chase to the Borrowers on
the Amendment and Restatement Effective Date) to the Borrowers (which
Tranche B Term Loan shall be made through the conversion of certain
outstanding demand obligations of the Borrowers) on the same terms and
conditions set forth in this Agreement for Tranche B Term Loans, and
all references to Tranche B Term Loans herein shall include such
Tranche B Term Loan."
5. Section 8 of the Credit Agreement shall be amended
by adding the following new Section 8.17:
"8.17 YEAR 2000 COMPLIANCE. Each Borrower will, and
will cause each of the Guarantors and their respective Subsidiaries to
do, or cause to be done, any reprogramming that such Borrower deems
necessary to permit the proper functioning of each Borrower, the
Guarantors and its Subsidiaries with minimal interruption, in and
following the year 2000, of (i) each Borrower's, each Guarantor's and
each of their Subsidiaries' computer systems and (ii) equipment
containing embedded microchips and the testing of all such systems and
equipment, which reprogramming will be completed by October 31, 1999,
in each case except to the extent that the failure to effect such
reprogramming and testing will not result in a Material Adverse Effect.
The cost to each Borrower, each Guarantor and to each of its
Subsidiaries of such reprogramming and testing is not expected to
result in a Material Adverse Effect."
6. Section 9.12(iii) of the Credit Agreement shall be
amended to read in its entirety as follows:
5 Page
"(iii) Permitted Equity Swaps; PROVIDED that from and
after the date of the satisfaction of the Subsequent Maturity Extension
Conditions, Patriot REIT may exercise its option to settle in cash all
of its obligations under Permitted Equity Swaps in existence on the
Amendment and Restatement Effective Date, with the proceeds of new
equity issued pursuant to the Definitive Equity Agreement."
7. Section 9 of the Credit Agreement shall be amended
by adding the following new Sections 9.15 and 916:
"9.15 FURTHER AMENDMENTS AND EXTENSION; MORTGAGES AND
OTHER SECURITY. The Borrowers hereby agree that no later than the
earlier of (i) sixty days after the termination of the Letter of Intent
(provided that such sixty-day period will be reduced day-for-day in the
event that the Definitive Equity Agreement remains unsigned beyond
January 31, 1999) or the Definitive Equity Agreement and (ii) June 30,
1999, the Borrowers shall execute and deliver amendments to this
Agreement (which may be in the form of an amendment and restatement if
requested by the Administrative Agent) and all other documentation
requested by the Administrative Agent, and shall cause the Guarantors
and their respective Subsidiaries to execute and deliver reasonably
appropriate documents, to implement the terms and conditions set forth
on Exhibit A (including, without limitation, extensions of the Tranche
I Term Loan Maturity Date and the Tranche II Term Loan Maturity Date
set forth therein). It is understood and agreed that the parties hereto
shall negotiate in good faith the form and substance of the agreements
reasonably necessary to comply with this Section 9.15, provided that it
shall be a breach of this Section 9.15 if the terms and conditions of
Exhibit A are not implemented pursuant to documents which are
reasonably satisfactory in form and substance to the Administrative
Agent and the Required Lenders within the time periods required under
this Section 9.15 (notwithstanding any claims or assertions made by the
Borrowers).
9.16 STRATEGIC ALTERNATIVES. In the event the
Definitive Equity Agreements are not signed on or before February 15,
1999, or after the execution thereof they are terminated, the Borrowers
shall use commercially reasonable efforts to consummate one or more
strategic business initiatives designed to meet its obligations on all
or a portion of the outstandings under the Credit Agreement, including
without limitation, seeking new equity investments, refinancing of
indebtedness or mergers or business combinations."
8. Section 12.01 of the Credit Agreement is hereby amended by
deleting the entire phrase in the second parenthetical thereof and inserting the
following phrase in lieu thereof:
"which for purposes hereof shall also include CSI in its
capacity as Lead Arranger and Book Manager and Xxxxx Xxxxxx in
its capacity as Arranger".
9. Effective from and as of December 31, 1998 through and
including March 31, 1999 (as such date may be extended as described in clause
(ii) below, the "Waiver
6 Page
Termination Date"), the undersigned Lenders hereby waive compliance (the
"Waiver") with the provisions of Section 9.08, Section 9.09 and Section 9.11(a)
of the Credit Agreement and all other terms and conditions, to the extent
necessary to permit the transactions described on Schedule I in accordance with
such Schedule I and as otherwise described in writing to the Lenders. This
Waiver shall be effective only for the period from and as of December 31, 1998
to and including the Waiver Termination Date (the "Waiver Period") and shall be
of no force or effect at any other time; PROVIDED that unless modified in
writing by the Required Lenders, (i) in the event of (I) any payment of
principal in respect of maturity or amortization of Indebtedness, or redemption
for value or assets of such Indebtedness of the Borrowers, the Guarantors and
their Subsidiaries, or any settlement of the existing Permitted Equity Swaps for
cash, debt or other consideration (other than common stock of Patriot and
Wyndham), other than as described on Schedule I hereto, (II) any acquisition or
disposition by the Borrowers, the Guarantors or their Subsidiaries of assets or
property other than (x) on a basis which is consistent with the restrictions on
the acquisition of assets or disposition of assets, as the case may be, set
forth in the terms and conditions of Exhibit A, including the requirement that
all net proceeds (as such term is described in Exhibit A) are applied to repay
Term Loans, and (y) as described on Schedule I hereto, (III) any incurrence of
Indebtedness by the Borrowers, the Guarantors and/or their Subsidiaries (x) in
excess of $25 million in principal amount in the aggregate and (y) after the
execution of the Definitive Equity Agreement, mortgage financing exceeding $250
million in aggregate principal amount (which mortgage financing shall be
permissible only to the extent to which all terms, including the selection of
the property to be mortgaged, are satisfactory to the Administrative Agent in
its sole discretion) on a basis which is consistent with the restrictions on
indebtedness set forth in Exhibit A, including the requirement that all net
proceeds (as such term is described in Exhibit A) are applied to repay Term
Loans, in the case of clauses (x) and (y) other than as described on Schedule I
hereto, (IV) any granting of or creation of any Liens encumbering the assets of
the Borrowers, the Guarantors and/or their Subsidiaries, encumbering assets with
a fair market value of, or securing obligations in excess of, $25 million, other
than as described (x) in clause (III) (y) above, (y) on Schedule I hereto and
(z) on Exhibit A or (V) the payment of Dividends by the Borrowers and their
Subsidiaries other than (x) on a basis set forth in the terms and conditions of
Exhibit A and (y) as described in Schedule I hereto, in the case of clauses (I),
(II), (III), (IV) or (V) on and after December 31, 1998 and prior to the Waiver
Termination Date, such Waiver Period shall automatically terminate and the
Waiver shall no longer be effective on the date of the occurrence of any such
event described in clauses (I), (II), (III), (IV) or (V) above; and (ii) upon
the satisfaction of the Subsequent Maturity Extension Conditions, the Waiver
Termination Date shall automatically be extended to June 30, 1999, subject to
the foregoing conditions.
10. In order to induce the Lenders to enter into this
Amendment and Restatement, the Borrowers hereby represent and warrant that (i)
the representations, warranties and agreements contained in Section 7 of the
Credit Agreement are true and correct in all material respects on and as of the
Amendment and Restatement Effective Date (except with respect to any
representations and warranties limited by their terms to a specific date, which
shall be true and correct in all material respects as of such date) and (ii)
there exists no Default or Event of Default on the Amendment and Restatement
Effective Date, in each case after giving effect to this Amendment and
Restatement.
7 Page
11. This Amendment and Restatement is limited as specified and
shall not constitute a modification, acceptance or waiver of any other provision
of the Credit Agreement or any other Credit Document.
12. This Amendment and Restatement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which counterparts when executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A complete set of counterparts shall be lodged with the Borrowers
and the Administrative Agent.
13. THIS AMENDMENT AND RESTATEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
14. This Amendment and Restatement shall become effective on
the date (the "Amendment and Restatement Effective Date") when (i) the
Borrowers, the Required Lenders and the Lenders which hold all of the
outstanding Tranche I Term Loans and Tranche II Term Loans on such date shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile) the same to the
Administrative Agent at the Notice Office, (ii) the Lenders shall have received
the fees described to them in writing by the Administrative Agent and (iii) the
Administrative Agent shall have received any fees agreed between itself and the
Borrowers which are then due and owing.
15. Upon the occurrence of the Amendment and Restatement
Effective Date, the Credit Agreement shall be Amended and Restated in its
entirety in the form as it exists on the date hereof after giving effect to the
changes set forth herein, and the Credit Agreement as it exists prior to the
Amendment and Restatement Effective Date shall be superseded.
16. From and after the Amendment and Restatement Effective
Date, all references in the Credit Agreement and the other Credit Documents to
the Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby.
* * *
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment and Restatement to be duly executed and delivered
as of the date first above written.
PATRIOT AMERICAN HOSPITALITY,
INC.
By: /s/
---------------------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/
---------------------------------------
Name:
Title:
CHASE SECURITIES INC., as Lead
Arranger
By: /s/
---------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
Individually and as the Administrative Agent
By: /s/
---------------------------------------
Name:
Title:
XXXXX XXXXXX REAL ESTATE
SECURITIES INC., Individually, as an
Arranger and as the Syndication Agent
By: /s/
---------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
Individually and as Documentation Agent
By: /s/
---------------------------------------
Name:
Title:
CITIBANK, N.A., Individually and as
Documentation Agent
By: /s/
---------------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as Documentation Agent
By: /s/
---------------------------------------
Name:
Title:
AG CAPITAL FUNDING PARTNERS, L.P.
By: Xxxxxx, Xxxxxx & Co., L.P. as Investment
Advisor
By: /s/
---------------------------------------
Name:
Title:
AERIES FINANCE LTD.
By: /s/
---------------------------------------
Name:
Title:
ALLIED IRISH BANKS PLC
By: /s/
---------------------------------------
Name:
Title:
ALLSTATE INSURANCE COMPANY
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
AMARA-2 FINANCE LTD.
By: /s/
---------------------------------------
Name:
Title:
ARAB BANK PLC, GRAND CAYMAN
BRANCH
By: /s/
---------------------------------------
Name:
Title:
BHF-BANK AKTIENGESELLSCHAFT
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
BALANCED HIGH-YIELD FUND I LTD
By: BHF-BANK Aktiengesellschaft, acting
through its New York Branch, as
attorney-in-fact
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
BANK HAPOALIM, B.M.
By: /s/
---------------------------------------
Name:
Title:
BANK LEUMI USA
By: /s/
---------------------------------------
Name:
Title:
BANK ONE TEXAS, N.A.
By: /s/
---------------------------------------
Name:
Title:
BANK UNITED
By:
---------------------------------------
Name:
Title:
BANK OF HAWAII
By: /s/
---------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By: /s/
---------------------------------------
Name:
Title:
BANKBOSTON, N.A.
By: /s/
---------------------------------------
Name:
Title:
BARCLAYS BANK PLC
By: /s/
---------------------------------------
Name:
Title:
BAYERISCHE HYPO-UND VEREINS BANK
AG, NEW YORK BRANCH
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
BEAR XXXXXXX INVESTMENT PRODUCTS INC.
By: /s/
---------------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/
---------------------------------------
Name:
Title:
CAPTIVA FINANCE LTD.
By: /s/
---------------------------------------
Name:
Title:
CERES FINANCE LTD.
By: /s/
---------------------------------------
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
CONSECO LIFE INSURANCE COMPANY
By: Conseco Capital Management, Inc., acting
as Investment Advisor
By: /s/
---------------------------------------
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company, its
Investor Manager
By: /s/
---------------------------------------
Name:
Title:
CYPRESSTREE INVESTMENT PARTNERS
II, LTD., By: CypressTree Investment
Management Company, Inc., as Portfolio Manager
By: /s/
---------------------------------------
Name:
Title:
CYPRESS TREE INVESTMENT PARTNERS II, LTD.,
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By: /s/
---------------------------------------
Name:
Title:
DLJ CAPITAL FUNDING, INC.
By: /s/
---------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK
BRANCH, GRAND CAYMAN BRANCH
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management, as Investment
Advisor
By: /s/
---------------------------------------
Name:
Title:
ERSTE BANK DER OUSTERREICHISCHEN
SPARKASSEN AG
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
FIRST AMERICAN BANK TEXAS, SSB
By: /s/
---------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/
---------------------------------------
Name:
Title:
FIRST COMMERCIAL BANK
By: /s/
---------------------------------------
Name:
Title:
FIRST DOMINION FUNDING I
By: /s/
---------------------------------------
Name:
Title:
FIRST NATIONAL BANK OF COMMERCE
By: /s/
---------------------------------------
Name:
Title:
FLOATING RATE PORTFOLIO
By: Invesco, Senior Secured Management, Inc.,
as Attorney-in-fact
By: /s/
---------------------------------------
Name:
Title:
HARTFORD LIFE AND ANNUITY
INSURANCE COMPANY
By: Hartford Investment Series, Inc., its
Agent and Attorney-in-fact
By: /s/
---------------------------------------
Name:
Title:
HIBERNIA NATIONAL BANK
By: /s/
---------------------------------------
Name:
Title:
ING. HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDING, LDC
By: ING Capital Advisors, Inc., as Investment
Advisor
By: /s/
---------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING IIA,
LIMITED
By: Indosuez Capital Luxembourg, as Collateral
Manager
By: /s/
---------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital Luxembourg, as Collateral
Manager
By: /s/
---------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /s/
---------------------------------------
Name:
Title:
KZH APPALOOSA LLC
By: /s/
---------------------------------------
Name:
Title:
KZH BDC LLC
By: /s/
---------------------------------------
Name:
Title:
KZH III LLC
By: /s/
---------------------------------------
Name:
Title:
KZH IV LLC
By: /s/
---------------------------------------
Name:
Title:
KZH PAMCO LLC
By: /s/
---------------------------------------
Name:
Title:
KZH XXXXXXXX LLC
By: /s/
---------------------------------------
Name:
Title:
KZH CNC LLC
By: /s/
---------------------------------------
Name:
Title:
KZH CRESCENT-2 LLC
By: /s/
---------------------------------------
Name:
Title:
KZH CRESCENT LLC
By: /s/
-----------------------------------------
Name:
Title:
KZH CYPRESSTREE-1 LLC
By: /s/
-----------------------------------------
Name:
Title:
KZH ING-2 LLC
By: /s/
-----------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., NEW YORK BRANCH
By: /s/
-----------------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P., as
Collateral Manager
By: /s/
-----------------------------------------
Name:
Title:
DEBT STRATEGIES FUND II, INC.
By: /s/
-----------------------------------------
Name:
Title:
XXXXXXX XXXXX GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By: /s/
-----------------------------------------
Name:
Title:
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: /s/
-----------------------------------------
Name:
Title:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/
-----------------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By: /s/
-----------------------------------------
Name:
Title:
XXXXXXX XXXXX DEBT STRATEGIES PORTFOLIO
By: XXXXXXX XXXXX ASSET MANAGEMENT, L.P.,
as Investment Advisor
By: /s/
-----------------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/
-----------------------------------------
Name:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK as Trustee on behalf
of NATS LOAN TRUST 10 and not in its
individual capacity
By: /s/
-----------------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.
By: /s/
-----------------------------------------
Name:
Title:
NORTHWOODS CAPITAL, LIMITED
By: Xxxxxx, Xxxxxx & Co., L.P. as Investment
Advisor
By: /s/
-----------------------------------------
Name:
Title:
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: /s/
-----------------------------------------
Name:
Title:
By: Oak Hill Securities MGP, Inc.
its General Partner
By: /s/
-----------------------------------------
Name:
Title:
OASIS COLLATERALIZED HIGH INCOME PORTFOLIO,
LTD.
By: /s/
-----------------------------------------
Name:
Title:
OCTAGON LOAN TRUST
By: Octagon Credit Investors, as Manager
By: /s/
-----------------------------------------
Name:
Title:
XXX CAPITAL FUNDING LP
By: Highland Capital Management, L.P.,
as its Collateral Manager
By: /s/
-----------------------------------------
Name:
Title:
PACIFIC LIFE INSURANCE COMPANY
formerly known as Pacific Mutual Life Insurance
Company
By: /s/
-----------------------------------------
Name:
Title:
By: /s/
-----------------------------------------
Name:
Title:
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management, as
its Investment Manager
By: /s/
-----------------------------------------
Name:
Title:
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/
-----------------------------------------
Name:
Title:
PILGRIM AMERICAN HIGH INCOME INVESTMENTS LTD
By: Pilgrim Investments, Inc., as
its Investment Manager
By: /s/
-----------------------------------------
Name:
Title:
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc., as
its Investment Manager
By: /s/
-----------------------------------------
Name:
Title:
XXXXXX DIVERSIFIED INCOME TRUST
By: /s/
-----------------------------------------
Name:
Title:
XXXXXX ASSET ALLOCATION FUNDS BALANCED
PORTFOLIO
By: /s/
-----------------------------------------
Name:
Title:
XXXXXX FUNDS TRUST, on behalf of
PUTNAN HIGH YIELD TRUST II
By: /s/
-----------------------------------------
Name:
Title:
XXXXXX PREMIER INCOME TRUST
By: /s/
-----------------------------------------
Name:
Title:
XXXXXX VARIABLE TRUST, on behalf of
XXXXXX VT DIVERSIFIED INCOME FUND
By: /s/
-----------------------------------------
Name:
Title:
XXXXXX VT HIGH YIELD TRUST
By: /s/
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Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By: /s/
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Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: /s/
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Name:
Title:
SIAM COMMERCIAL BANK PUBLIC COMPANY LIMITED,
NEW YORK AGENCY
By: /s/
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Name:
Title:
By: /s/
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Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/
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Name:
Title:
STRATA FUNDING LTD
By: /s/
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Name:
Title:
THE SUMITOMO BANK, LIMITED
By: /s/
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Name:
Title:
SUMMIT BANK
By:
-----------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By: /s/
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Name:
Title:
THE TRAVELERS INSURANCE COMPANY
By: /s/
-----------------------------------------
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By: /s/
-----------------------------------------
Name:
Title:
XXX XXXXXX SENIOR INCOME TRUST
By: /s/
-----------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/
-----------------------------------------
Name:
Title:
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/
-----------------------------------------
Name:
Title:
Exhibit A
SUMMARY OF PLAN B
TERMS AND CONDITIONS
MATURITY EXTENSIONS: The final maturity date for the Tranche I Term
Loan shall be extended to March 31, 2000.
The final maturity date for the Tranche II
Term Loan shall be extended to March 31,
2000.
AMORTIZATION: $300 million on December 31, 1999 against
Tranches I and II PRO RATA (reduced by
previous reductions to the Term Loans prior
to such date).
XXXX TO MARKET PRICING: 75 bps increase to all Tranches upon the
implementation of Plan B.
MORTGAGES AND OTHER
COLLATERAL: In addition to the security currently under
the Credit Agreement, the Lenders and certain
swap creditors shall receive, on a basis
consistent with their current security
interests, and in form and substance
reasonably satisfactory to the Administrative
Agent:
(i) Deeds of trust, mortgages, leasehold deeds of
trust or leasehold mortgages (each a
"Mortgage" and collectively, the "Mortgages"),
which Mortgages shall cover such of the
unencumbered real property owned or leased by
the Borrowers, the Guarantors and/or their
subsidiaries as agreed between the
Administrative Agent and Patriot, provided
that such property will constitute
substantially all of such real property as may
be mortgaged without violating existing
contractual obligations, and structured to
avoid excessive mortgage recording taxes.
(ii) Patriot shall use reasonable efforts to obtain
subordination, nondisturbance and attornment
agreements, assignments of leases, landlord
consents, tenant estoppel certificates, and
such other documents relating to the Mortgages
that the Administrative Agent may reasonably
request.
(iii) Extended coverage policies of mortgage title
insurance covering each mortgaged property, in
amounts reasonably satisfactory to the
Administrative Agent.
Exhibit A
(iv) A Security Agreement in form and substance
satisfactory to the Administrative Agent (the
"Security Agreement") covering all of the
Borrowers', the Guarantors' and their
subsidiaries' present personal property, in
each case together with:
(a) Executed Financing Statements
(Form UCC-1).
(b) Certified copies of Requests for
Information or Copies (Form UCC-11), or
equivalent reports.
(c) Evidence of the completion of all
other recordings and filings of, or with
respect to, the Security Agreement as
may be necessary or, in the reasonable
opinion of the Administrative Agent,
desirable to perfect the security
interests intended to be created by the
Security Agreement.
(v) Customary opinions of counsel relating to the
foregoing.
COVENANTS: The following covenants shall be amended
and/or added to the Credit Agreement (it
being understood and agreed that the
transactions described on Schedule I shall
be permitted).
(i) Total Debt/EBITDA shall be less than or equal
to 6.0x.
(ii) EBITDA/Interest shall be greater than or equal
to 1.75x.
(iii) EBITDA/Fixed Charges shall be lowered in
connection with a potential equity forward
settlement involving the conversion to
preferred stock and revised to be greater
than or equal to 1.35x.
Exhibit A
(iv) Dividends shall be restricted and/or
prohibited as follows:
(a) Dividends (including dividends paid
through the issuance of preferred
stock) shall be restricted to the
minimum amount necessary for Patriot
REIT to maintain REIT status (including
allowing the transfer of assets among
the Borrowers and Guarantors to
maintain REIT status).
(b) The dividend restriction shall be
expanded to cover Wyndham and its
subsidiaries.
(c) Exceptions to (iv) (a) or (iv) (b)
shall be made for dividends paid on
preferred equity issued and outstanding
on the date hereof, and preferred stock
issued in lieu of the dividends on
common stock, and on OP Units, in each
case payable at the time of payments of
dividends on common stock, and on
preferred stock issued (or the proceeds
of which are used) to settle the
existing equity forwards, provided that
the terms taken as a whole on any
preferred stock issued to settle the
existing equity forwards shall be
limited to terms that are no less
favorable to the Borrower and Lenders
than the stock to be issued to the
sponsors pursuant to the Letter of
Intent.
(v) The 5% net tangible asset basket shall be
removed from the Credit Agreement; liens
provided for under the Credit Agreement (other
than liens in Section 9.06 (xiv) thereof
except to the extent incurred prior to January
21, 1999), liens contemplated within Schedule
I and replacements and refinancings thereof
encumbering same assets, shall be permitted.
(vi) The Borrowers, the Guarantors and their
subsidiaries shall be required to repay
outstanding Term Loans (and thereafter
reduce Revolving Loan Commitments) with the
proceeds (net of reasonable costs and
expenses) of the incurrence of debt, the
issuance or sale of equity (other than the
sale of equity (common or preferred) the
proceeds of which was to be used to repay
the existing equity forwards) or any capital
contributions or dispositions of assets as
follows, with customary exceptions:
(a) 100% of debt incurrence proceeds;
Exhibit A
(b) 100% of equity sales or issuance
other than common or preferred equity
issued or sold the proceeds of which are
issued to settle the existing equity
forwards; provided that after $750 million
of Term Loans have been repaid, the
percentage shall be reduced to 50% if no
default or event of default exists;
(c) 100% of asset disposition (net of (i)
taxes required to be paid as a result of
any gain to Patriot and/or its
subsidiaries and (ii) any amount used to
pay fees owing under the Credit
Agreement); provided that after $750
million of Term Loans have been repaid,
at any time that no default or event of
default exists (x) such percentage shall
be reduced to 85% (until Patriot, the
Guarantors and their subsidiaries retain
$40 million as a result thereof) and (y)
if Patriot's Total Debt/EBITDA (on a
pro-forma historical basis) is less than
5.0x, such percentage shall be reduced
to 75% with the remaining 25%, to be
reinvested in assets of the business;
and
(d) all mandatory recapture provisions
described above shall apply to repay
first Tranche I and Tranche II Term
Loans PRO RATA, then Tranche III0 Term
Loans, then Tranche B Term Loans, and
thereafter to reduce Revolving Loan
Commitments after all Term Loans are
repaid in full.
(vii) Restrictions on acquisitions of assets or
other persons or entities, subject to a
basket for up to $10 million per acquisition
(and $50 million in the aggregate).
(viii) Neither Borrowers, the Guarantors nor their
subsidiaries shall be permitted to merge,
liquidate or otherwise dispose of any of its
assets, other than (x) equipment or
intangible assets in the ordinary course of
business, (y) the Borrowers, the Guarantors
and their subsidiaries may merge, liquidate
or dispose of assets with, into or among
each other so long as the security interests
under the Mortgages and Security Agreement
remain in full force and effect and (z)
disposition of Non-Strategic Assets (as
described in the Credit Agreement, and which
Non-Strategic Assets shall not include,
without limitation, hotels which are as of
the Amendment and Restatement Effective Date
flagged as Grand Bay (or Carefree), Wyndham,
Wyndham Resorts, Wyndham Gardens, Wyndham
Grand Heritage or Summerfield hotels) for
100% cash consideration so long as the
amount received is equal to or greater than
8x EBITDA (calculated on the latest 12-month
trailing numbers).
Exhibit A
(ix) The Borrowers, the Guarantors and their
subsidiaries shall incur no further
Indebtedness, subject to customary exceptions
to be agreed upon, provided that Patriot and
or its subsidiaries may incur non-recourse
mortgage financing on terms and conditions
satisfactory to the Administrative Agent, the
net proceeds of which exceed 6.4x EBITDA
(calculated on the latest 12-month trailing
numbers).
(x) Prepayment or other retirement for value of
certain indebtedness, or amendments thereto,
shall be restricted.
(xi) The $200 million basket for Permitted Equity
Swaps to be settled in cash shall be deleted.
