1
EX - 10.2
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of March 3, 1998, among
STARWOOD HOTELS & RESORTS, a Maryland real estate investment trust ("Starwood
REIT"), SLT REALTY LIMITED PARTNERSHIP, a Delaware limited partnership ("SLT
RLP"), STARWOOD HOTELS & RESORTS WORLDWIDE, INC., a Maryland corporation (the
"Corporation"), ITT CORPORATION, a Nevada corporation ("ITT" and, together with
Starwood REIT, SLT RLP and the Corporation, the "Borrowers"), the lenders party
to the Credit Agreement referred to below on the date hereof and immediately
before giving effect to this Amendment (the "Existing Lenders"), BANKERS TRUST
COMPANY and THE CHASE MANHATTAN BANK, as Administrative Agents, (in such
capacity, collectively, the "Administrative Agents" and each an "Administrative
Agent"), and XXXXXX COMMERCIAL PAPER INC. and BANK OF MONTREAL, as Syndication
Agents (in such capacity, collectively, the "Syndication Agents" and each a
"Syndication Agent"), and each of the lenders listed on Schedule A hereto (the
"New Lenders"). 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 Existing Lenders, the Administrative Agents
and the Syndication Agents are parties to a Credit Agreement, dated as of
February 23, 1998 (the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement as herein
provided;
NOW, THEREFORE, it is agreed:
1. On the First Amendment Effective Date (as defined below), each of
Bankers Trust Company, The Chase Manhattan Bank, Xxxxxx Commercial Paper Inc.,
Bank of Montreal, Credit Lyonnais New York Branch, Xxxxxxx Sachs Credit
Partners L.P., Societe Generale, Southwest Agency and NationsBank N.A.
(collectively, the "Assigning Lenders" and each, an "Assigning Lender")
severally and not jointly hereby sells and assigns to each of the New Lenders
without recourse and without representation or warranty (other than as
expressly provided herein), and each New Lender hereby purchases and assumes
from each of the Assigning Lenders, that interest in and to each of such
Assigning Lender's rights and obligations in respect of those facilities set
forth on Schedule B hereto under the Credit Agreement as of the date hereof
which in the aggregate represents such New Lender's pro rata share (for each
such New Lender, its "Pro Rata Share") in such facilities as set forth on such
Schedule B (calculated after giving effect to this Amendment), and such Pro
Rata Share represents all of the outstanding rights and obligations under the
Credit Agreement in respect of the facilities that are being sold and assigned
to each New Lender pursuant to this Amendment, including, without limitation,
(x)
2
in the case of any assignment of the outstanding Tranche I Term Loans, all
rights and obligations with respect to such New Lender's Pro Rata Share of such
outstanding Tranche I Term Loans, (y) in the case of any assignment of the
outstanding Tranche II Term Loans, all rights and obligations with respect to
such New Lender's Pro Rata Share of such outstanding Tranche II Term Loans and
(z) in the case of any assignment of the Total Revolving Loan Commitment, all
rights and obligations with respect to such New Bank's Pro Rata Share of the
Revolving Loans and Letters of Credit. After giving effect to this Amendment,
each Lender's outstanding Tranche I Term Loans, Tranche II Term Loans, and
Revolving Loan Commitment will be as set forth on Schedule C hereto.
2. In accordance with the requirements of Section 13.04(b) of the Credit
Agreement, on the First Amendment Effective Date, (i) the Credit Agreement
shall be amended by deleting Schedule I-A thereto in its entirety and by
inserting in lieu thereof a new Schedule I-A in the form of Schedule C hereto
and (ii) the Borrowers agree that they will issue an appropriate Tranche I Term
Note and/or Tranche II Term Note and/or Revolving Note to each Lender that has
requested such Note pursuant to Section 1.06(j) of the Credit Agreement in
conformity with the requirements of Section 1.06 of the Credit Agreement.
3. On and after the First Amendment Effective Date, Schedule II to the
Credit Agreement shall be amended by deleting such Schedule in its entirety and
inserting in lieu thereof a new Schedule II in the form of Schedule D hereto.
4. Each Assigning Lender (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or any of their Subsidiaries or the performance or observance by the
Borrowers or any of their Subsidiaries of any of their obligations under the
Credit Agreement or the other Credit Documents to which they are a party or any
other instrument or document furnished pursuant thereto.
5. Each New Lender (i) confirms that it has received a copy of the Credit
Agreement and the other Credit Documents, together with copies of the financial
statements referred to therein and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Amendment; (ii) agrees that it will, independently and without
reliance upon the Administrative Agents or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Transferee under Section
13.04(b) of the Credit Agreement; (iv) appoints and authorizes the
Administrative Agents and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement and the other
-2-
3
Credit Documents as are delegated to the Administrative Agents and the
Collateral Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) to the
extent legally entitled to do so, agrees to promptly submit the forms described
in Section 13.04(b) of the Credit Agreement.
6. Each of the Existing Lenders, the New Lenders and the Agents hereby
agree that all amounts accrued with respect to the Tranche I Term Loans,
Tranche II Term Loans and Revolving Loans prior to the delivery by such New
Lender of the amount referred to in clause (ii) of Section 11 of this Amendment
shall be for the account of the Assigning Lenders, respectively, and that all
such amounts accrued on and after the delivery of such amounts referred to in
clause (ii) of such Section 11 shall be for the account of such New Lender
based upon its relevant Pro Rata Share.
7. In accordance with Section 13.04(b) of the Credit Agreement, on and as
of the date upon which each of the New Lenders delivers the amounts referred to
in clause (ii) of Section 11 of this Amendment, each New Lender shall become a
"Lender" under, and for all purposes of, the Credit Agreement and the other
Credit Documents and, notwithstanding anything to the contrary in Section 13.15
of the Credit Agreement, the Paying Agent shall record the transfers
contemplated hereby in the Register.
8. This Amendment 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.
9. This Amendment 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 Paying Agent.
10. THIS AMENDMENT 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.
11. Subject to Section 12 of this Amendment, this Amendment shall become
effective on the date (the "First Amendment Effective Date") when (i) the
Borrowers, the Administrative Agents, the Syndication Agents, the Required
Lenders (before giving effect to this Amendment), each Assigning Lender and
each New Lender shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Paying Agent at the Notice Office and (ii) each
New Lender shall have delivered to the Paying Agent, for the accounts of the
Assigning Lenders, respectively, an amount equal to such New Lender's relevant
Pro Rata Share of the outstanding Loans being assigned to such New Lender.
-3-
4
12. Notwithstanding Section 11 of this Amendment, if for any reason any
New Lender shall not have (i) signed a counterpart hereof and delivered the
same to the Paying Agent at the Notice Office and (ii) delivered to the Paying
Agent an amount equal to such New Lender's relevant Pro Rata Share of the
outstanding Term Loans being assigned to such New Lender, in each case on or
prior to March 3, 1998, then, if the Required Lenders (before giving effect to
this Amendment) agree, this Amendment shall become effective notwithstanding
such failure, provided that (x) Schedule C shall be modified to delete any such
New Lender and such New Lender's relevant Pro Rata Share shall be reallocated
among the Assigning Lenders in such manner as such Assigning Lenders shall
agree and (y) the signature pages of this Amendment shall be deemed revised to
delete such New Lender's name therefrom.
13. From and after the First Amendment Effective Date, all references in
the Credit Agreement and each of the Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as amended hereby.
* * *
-4-
5
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
0000 Xxxx Xxxxxxxxx Xxxx STARWOOD HOTELS & RESORTS
Xxxxx 000
Xxxxxxx Xxxxxxx 00000 By:
---------------------------------------
Attention: Xxxxxx X Xxxxx Name: Xxxxxx X. Xxxxx
Telephone No.: (000) 000-0000 Title: Senior Vice President and
Telecopier No.: (000) 000-0000 Chief Financial Officer
0000 Xxxx Xxxxxxxxx Xxxx SLT REALTY LIMITED PARTNERSHIP,
Suite 410 a Delaware limited partnership
Xxxxxxx, Xxxxxxx 00000
By: Starwood Hotels & Resorts, a Maryland real
Attention: Xxxxxx X. Xxxxx estate investment trust, its general partner
Telephone No.: (602) 852,3351
Telecopier No.:(000) 000-0000
By:
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
0000 Xxxx Xxxxxxxxx Xxxx STARWOOD HOTELS & RESORTS
Suite 400 WORLDWIDE, INC.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx By:
Telephone No.: (000) 000-0000 ---------------------------------------
Telecopier No.:(000) 000-0000 Name: Xxxx X. Xxxxxxx
Title: Vice President
0000 Xxxx Xxxxxxxxx Xxxx ITT CORPORATION
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
By:
Attention: Xxxx X. Xxxxxxx ---------------------------------------
Telephone No.: (000) 000-0000 Name: Xxxx X. Xxxxxxx
Telecopier No.:(000) 000-0000 Title: Vice President
6
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
and as Paying Agent
By:
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Principal
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
By:
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.,
Individually and as Syndication Agent
By:
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
BANK OF MONTREAL,
Individually and as Syndication Agent
By:
---------------------------------------
Name:
Title:
BANK POLSKA KASA OPIEKI S.A. -
PEKAO S.A. GROUP, NEW YORK
BRANCH
By:
----------------------------------
Name:
Title:
7
BARCLAYS BANK PLC
By:
----------------------------
Name:
Title:
BEAR XXXXXXX INVESTMENT
PRODUCTS INC.
By:
----------------------------
Name:
Title:
CREDIT LYONNAIS, NEW YORK
BRANCH
By:
----------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
----------------------------
Name:
Title:
8
XXXXXXX XXXXX CREDIT PARTNERS
L.P.
By:
----------------------------
Name:
Title:
GULF INTERNATIONAL BANK B.S.C.
By:
----------------------------
Name:
Title:
NATIONSBANK N.A.
By:
----------------------------
Name:
Title:
SOCIETE GENERALE, SOUTHWEST
AGENCY
By:
----------------------------
Name:
Title:
9
NEW LENDERS:
BANCA POPOLARE DI MILANO
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
BANKBOSTON N.A.
By:
----------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI,
LIMITED, NEW YORK BRANCH
By:
----------------------------
Name:
Title:
BANQUE PARIBAS
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
10
CIBC INC.
By:
----------------------------
Name:
Title:
XXXXX XXX COMMERCIAL BANK
LTD., NEW YORK BRANCH
By:
----------------------------
Name:
Title:
XXXXX XXXX BANK CO., LTD. NEW
YORK AGENCY
By:
----------------------------
Name:
Title:
CREDITO ITALIANO
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
00
XXXXXXXX XXXX XX XXX XXXX
XXX/XX XXXXXX XXXXXXX
BRANCH
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
ERSTE BANK DER
OESTERREICHISCHEN SPARKASSEN
AG
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
FIRST COMMERCIAL BANK
By:
----------------------------
Name:
Title:
FIRST SECURITY BANK, N.A.
By:
----------------------------
Name:
Title:
12
FLEET BANK, N.A.
By:
----------------------------
Name:
Title:
LAND BANK OF TAWAIN, LOS ANGELES
BRANCH
By:
----------------------------
Name:
Title:
MITSUBISHI TRUST & BANKING
CORPORATION
By:
----------------------------
Name:
Title:
SOUTHERN PACIFIC BANK
By:
----------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By:
----------------------------
Name:
Title:
13
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title: