Exhibit 4.03
FIRST AMENDMENT dated as of February , 1998 (this
"Amendment"), among CHOICE HOTELS INTERNATIONAL, INC., a Delaware
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corporation (the "Borrower"), the undersigned financial
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institutions party to the Credit Agreement referred to below (the
"Lenders"), and THE CHASE MANHATTAN BANK, as agent for the
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Lenders (in such capacity, the "Agent").
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A. Reference is made to the Competitive Advance and Multi-Currency
Credit Facilities Agreement dated as of October 15, 1997 (the "Credit
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Agreement") among the Borrower, the Lenders and the Agent. Capitalized terms
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used but not otherwise defined herein have the meanings assigned to them in the
Credit Agreement.
B. The Borrower has requested that the Lenders amend certain
provisions of the Credit Agreement. The Lenders are willing to do so, subject
to the terms and conditions of this Amendment.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Article I. The following amendments are made
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to the definitions contained in Article I of the Credit Agreement:
(a) The definition of "Baron Entities" is hereby amended to read as
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follows: "Baron Entities" shall mean the collective reference to Xxxxxx
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Baron, Baron Capital Group, Inc., Baron Capital, Inc., BAMCO, Inc., Baron
Capital Management Inc., Baron Asset Fund and any of their respective
Affiliates.
(b) The definition of "Change in Control" shall be amended by adding
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the following sentence at the end thereof: "Notwithstanding the foregoing,
no Change in Control will be deemed to have occurred by virtue of the Baron
Entities owning directly or indirectly, beneficially or of record, shares
representing greater than 33% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower if
the Baron Entities shall own greater than 33% of the capital stock of the
Borrower solely as a result of stock repurchases made by the Borrower in
the ordinary course of business, with no view toward increasing the Baron
Entities' relative ownership interest or otherwise changing control of the
Borrower; provided that the Baron Entities shall not have
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acquired directly or indirectly, beneficially or of record, any shares of
capital stock of the Borrower since February , 1998, other than (i)
pursuant to pro rata stock splits and stock dividends made by the Borrower
and (ii) that the Baron Entities, as a whole, may at any time own the same
aggregate number of shares of capital stock of the Borrower that they own
as of February , 1998 (after giving effect to dispositions and repurchases
by the Baron Entities).
SECTION 2. Representations, Warranties and Agreements. The Borrower
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hereby represents and warrants to and agrees with each Lender and the Agent
that:
(a) The representations and warranties set forth in Article III of
the Credit Agreement are true and correct in all material respects with the
same effect as if made on the Amendment Effective Date, except to the
extent such representations and warranties expressly relate to an earlier
date.
(b) The Borrower has the requisite power and authority to execute,
deliver and perform its obligations under this Amendment.
(c) The execution, delivery and performance by the Borrower of this
Amendment (i) have been duly authorized by all requisite action and (ii)
will not (A) violate (x) any provision of law, statute, rule or regulation,
or of the certificate or articles of incorporation or other constitutive
documents or by-laws of the Borrower or any Subsidiary, (y) any order of
any Governmental Authority or (z) any provision of any indenture, agreement
or other instrument to which the Borrower or any Subsidiary is a party or
by which any of them or any of their property is or may be bound, (B) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under any such indenture, agreement for
borrowed money or other agreement or instrument or (C) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower.
(d) This Amendment has been duly executed and delivered by the
Borrower. Each of this Amendment and the Credit Agreement, as amended
hereby, constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its
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terms, except as enforceability may be limited by (i) any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principals of equity.
(e) As of the Amendment Effective Date, no Event of Default or
Default has occurred and is continuing.
SECTION 3. Conditions to Effectiveness. This Amendment shall become
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effective on the date of the satisfaction in full of the following conditions
precedent (the "Amendment Effective Date"):
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(a) The Agent shall have received duly executed counterparts hereof
which, when taken together, bear the authorized signatures of the Borrower,
the Agent and the Required Lenders.
(b) Xxxxxx Xxxxx and the Borrower shall have entered into a
shareholder agreement in form and substance satisfactory to the Agent.
(c) All legal matters incident to this Amendment shall be
satisfactory to the Required Lenders, the Agent and Cravath, Swaine &
Xxxxx, counsel for the Agent.
(d) The Agent shall have received such other documents, instruments
and certificates as it or its counsel shall reasonably request.
SECTION 4. Credit Agreement. Except as specifically stated herein,
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the Credit Agreement shall continue in full force and effect in accordance with
the provisions thereof. As used therein, the terms "Agreement", "herein",
"hereunder", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Loan Agreement as modified hereby.
SECTION 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in any
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number of counterparts, each of which shall be an original but all of which,
when taken together, shall constitute but one instrument. Delivery of an
executed counterpart of a signature page of this Amendment by telecopy
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shall be effective as delivery of a manually executed counterpart of this
Amendment.
SECTION 7. Expenses. The Borrower agrees to reimburse the Agent
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for its out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel
for the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the date first
above written.
CHOICE HOTELS INTERNATIONAL, INC.
by ____________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Issuing Bank
and Agent
by ____________________________
Name:
Title:
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
by ____________________________
Name:
Title:
CRESTAR BANK
by ____________________________
Name:
Title:
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THE DAI-ICHI KANGYO BANK, LTD.
by ____________________________
Name:
Title:
FIRST NATIONAL BANK OF MARYLAND
by ____________________________
Name:
Title:
FIRST UNION NATIONAL BANK
by ____________________________
Name:
Title:
THE FUJI BANK, LIMITED
by ____________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
by ____________________________
Name:
Title:
THE LONG TERM CREDIT BANK OF JAPAN, LTD.,
NEW YORK BRANCH
by ____________________________
Name:
Title:
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MELLON BANK, N.A.
by ____________________________
Name:
Title:
NATIONSBANK, N.A.
by ____________________________
Name:
Title:
THE SANWA BANK, LIMITED,
NEW YORK BRANCH
by ____________________________
Name:
Title:
SUMMIT BANK
by ____________________________
Name:
Title:
THE TOYO TRUST & BANKING COMPANY, LTD.,
NEW YORK BRANCH
by ____________________________
Name:
Title:
by ____________________________
Name:
Title:
