AMENDMENT
NO. 2, dated as of July 2, 2008 (this “ Amendment
”), by and among INTERSTATE OPERATING COMPANY, LP, a Delaware
limited partnership (the “ Borrower ”), LEHMAN
COMMERCIAL PAPER INC., as Administrative Agent (the “
Administrative Agent ”), and the Lenders party hereto
to the Credit Agreement (as defined below).
WHEREAS,
the Borrower, the Administrative Agent, Lehman Brothers Inc. as
sole lead arranger and sole bookrunner, Société
Générale, as syndication agent, Calyon New York Branch
and Merrill Lynch Capital, a division of Merrill Lynch Business
Financial Services, Inc. as co-documentation agents and the Lenders
have entered into that certain Senior Secured Credit Agreement,
dated as of March 9, 2007 (as amended, supplemented or
otherwise modified from time to time, the “ Credit
Agreement ”);
WHEREAS,
the Borrower has requested certain amendments to the Credit
Agreement as more specifically set forth below;
WHEREAS,
the Administrative Agent and the Lenders have agreed, subject to
the terms and conditions hereinafter set forth, to amend the Credit
Agreement as set forth below.
NOW,
THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as
follows:
1.
Defined Terms . Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to such terms in
the Credit Agreement.
2.
Amendments . Effective as of the Amendment No. 2
Effective Date (as defined in Section 3 of this Amendment) and
subject to the terms and conditions set forth herein, the Credit
Agreement is hereby amended as follows:
(a) Section 1.01
( Certain Defined Terms ) of the Credit Agreement is hereby
amended by inserting the following definitions in the appropriate
alphabetical order:
““
Amendment No. 2 ”” means the Amendment
No. 2, dated as of July 2, 2008 by and among the
Borrower, the Administrative Agent and the Lenders party
thereto.”
““
Amendment No. 2 Effective Date ”” means the
Amendment No. 2 Effective Date as defined in Amendment
No. 2 to this Agreement.”
(b) The
definition of “ Sliver Investments ” in
Section 1.01 ( Certain Defined Terms ) of the Credit
Agreement is hereby deleted in its entirety and replaced with the
following:
““
Sliver Investments ” shall mean debt and equity
investments in partnerships, companies or limited liability
companies (a) for which the Borrower’s direct or
indirect ownership interest is less than 50% and (b) that own
hospitality properties for which the Borrower or its wholly-owned
subsidiary will have a Customary Property Agreement;
provided , that , with respect to Investments of up
to $25,000,000 in the aggregate, such Customary Property Agreement
may be held by an entity which is not a wholly owned subsidiary of
Borrower or of a Subsidiary of Borrower.”
3.
Conditions to Effectiveness of this Amendment . This
Amendment shall become effective as of the date (the “
Amendment No. 2 Effective Date ”) each of the
following conditions precedent shall have been
satisfied:
(a) The
Administrative Agent shall have received on or prior to the
Amendment No. 2 Effective Date each of the following, each dated
the Amendment No. 2 Effective Date unless otherwise indicated
or agreed to by the Administrative Agent and in form and substance
satisfactory to the Administrative Agent:
(i)
this Amendment, executed by the Borrower, the Administrative Agent
and the Required Lenders under the Credit Agreement; and
(ii)
such additional documentation as the Administrative Agent or the
Lenders may reasonably require.
(b) There
shall have been paid to the Administrative Agent, for the account
of itself and the Lenders, as applicable, all expenses (including
reasonable expenses of counsel) due and payable on or before the
Amendment No. 2 Effective Date.
4.
Representations and Warranties . The Borrower hereby
represents and warrants to the Administrative Agent and the
Lenders, on and as of the date hereof, that:
(a)
(i) The Borrower has taken all necessary action to authorize
the execution, delivery and performance of this Amendment,
(ii) this Amendment has been duly executed and delivered by
the Borrower and (iii) this Amendment is the legal, valid and
binding obligation of the Borrower, enforceable against it in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights
generally and by general equitable principles.
(b) After
giving effect to this Amendment, each of the representations and
warranties made by any Loan Party in or pursuant to the Credit
Documents is true and correct in all material respects on and as of
the date hereof, as if made on and as of such date, except to the
extent such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties are
true and correct in all material respects as of such earlier
date.
(c) After
giving effect to this Amendment, no Default or Event of Default has
occurred and is continuing as of the date hereof.
(a) Each
Loan Party hereby consents to the execution, delivery and
performance of this Amendment and agrees that each reference to the
Credit Agreement in the Credit Documents shall, on and after the
Amendment No. 2 Effective Date, be deemed to be a reference to
the Credit Agreement as amended by this Amendment.
(b) Each
Loan Party hereby acknowledges and agrees that, after giving effect
to this Amendment, all of its respective obligations and
liabilities under the Credit Documents to which it is a party are
reaffirmed, and remain in full force and effect.
6.
Continuing Effect . Except as expressly set forth in this
Amendment, all of the terms and provisions of the Credit Agreement
are and shall remain in full force and effect and the
2
Borrower shall
continue to be bound by all of such terms and provisions. The
Amendment provided for herein is limited to the specific provisions
of the Credit Agreement specified herein and shall not constitute
an amendment of, or an indication of the Administrative
Agent’s or the Lenders’ willingness to amend or waive,
any other provisions of the Credit Agreement or the same sections
for any other date or purpose. This Amendment is a Credit
Document.
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