FIRST AMENDMENT TO LOAN
AGREEMENT
Dated as of December 26,
2007
INTERSTATE ARLINGTON, LP,
UBS REAL ESTATE SECURITIES
INC.,
AMENDMENT TO LOAN
AGREEMENT
THIS
AMENDMENT TO LOAN AGREEMENT, dated as of December 26
th , 2007 this
“Amendment”), by and between the
INTERSTATE ARLINGTON, LP, a Delaware limited partnership
(“Borrower”), having its address at c/o
Interstate Hotels & Resorts, Inc., 4501 North Fairfax Drive,
Arlington, Virginia 22203 and UBS REAL ESTATE SECURITIES
INC., a Delaware corporation, having an address 1285 Avenue of
the Americas, New York, Nsew York 10019
(“Lender”).
WHEREAS, Borrower and Lender have executed and delivered a
Loan Agreement dated as of October 17, 2006 (the
“Original Loan Agreement ”) which
evidenced a loan made by Lender to Borrower in the original
principal amount of Twenty-Four Million Seven Hundred Thousand and
Noll n0 Dollars ($24,700,000.00) (the “Original Loan
Amount”); and
WHEREAS, Borrower and Lender desire to amend the Original
Loan Agreement as more particularly set forth herein (the Original
Loan Agreement as amended by this Amendment is hereafter referred
to as the “Loan :Agreement”).
NOW, THEREFORE, in consideration of the sum of Ten Dollars
($10.00) and for other good and valuable consideration, each to the
other given, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree that the Original
Loan Agreement is hereby amended to read as follows:
1. Definitions Added and Amended. The following
definitions are (a) added to Section 1.1 of the Loan Agreement
or (b) appear in Section 1.1 but are hereby amended and
restated in their entirety to read as follows:
“Capital Expenditure Account” shall have
the meaning set forth in
Section 6.4.1
“ERISA”
shall have the meaning set forth in Section
4.2.10.
“Event of Default” shall have the meaning
set forth ill Section 10.1(a).
“Re-Dating” shall have the meaning set forth in
Section 9.1(b)(iv).
“Required Repair Account” shall have the
meaning set forth in Section 6.1.1 hereof.
“Reserve Accounts - shall mean the accounts and sub accounts in
which the Reserve Funds are being held in accordance with this
Agreement.
“Spread Maintenance Premium” shall mean,
in connection with a prepayment of all or any portion of the
outstanding principal balance of the Loan pursuant to
Section 2.3.3 hereof, an amount equal to the present
value, discounted at LIBOR on the most recent
Determination
Date, of all future installments of interest which would have been
due hereunder through and including the last day of the Interest
Period in which the Permitted Prepayment Date occurs on the portion
of the outstanding principal balance of the Loan being prepaid as
if interest accrued on such portion of the principal balance being
prepaid at an interest rate per annum equal to the LIBOR Interest
Rate then in effect plus the Spread. The Spread Maintenance Premium
shall be calculated by Lender and shall be final absent manifest
error.
For
all purposes under the Loan Agreement, Section 2.2.3(g)
shall be added or deleted and replaced with the
following:
“(g)
Borrower agrees to indemnify Lender and to hold Lender harmless
from any loss or expense (other than consequential and punitive
damages) which Lender sustains or incurs as a consequence of
(i) any default by Borrower in payment of the principal of or
interest on a LIBOR Loan, including, without limitation, any such
loss or expense arising from interest or fees payable by Lender to
lenders of funds obtained by it in order to maintain a LIBOR Loan
hereunder, (ii) any prepayment (whether voluntary or
mandatory) of the LIBOR Loan on a day that (A) is not a
Monthly Payment Date or (B) is a Monthly Payment Date if
Borrower did not give the prior written notice of such prepayment
required pursuant to the terms of this Agreement, including,
without limitation, such loss or expense arising from interest or
fees payable by Lender to lenders of funds obtained by it in order
to maintain the LIBOR Loan hereunder and (iii) the conversion
(for any reason whatsoever, whether voluntary or involuntary) of
the Applicable Interest Rate to the Substitute Rate plus the
Substitute Spread with respect to any portion of the outstanding
principal amount of the Loan then bearing interest at a rate other
than the Substitute Rate plus the Substitute Spread on a date other
than the first day of an Interest Period, including, without
limitation, such loss or expenses arising from interest or fees
payable by Lender to lenders of funds obtained by it in order to
maintain a LIBOR Loan hereunder (the amounts referred to in clauses
(i), (ii) and (iii) are herein referred to collectively as the
“Breakage Costs”). Whenever in this
Section 2.2.3 the term “interest or fees payable
by Lender to lenders of funds obtained by it” is used and no
such funds were actually obtained from such lenders, it shall
include interest or fees which would have been payable by Lender if
it had obtained funds from lenders in order to maintain a LIBOR
Loan hereunder. Lender will provide to Borrower a statement
detailing such Breakage Costs and the calculation
thereof”
(ii) For all
purposes under the Loan Agreement, Section 2.3.3 shall
be added or deleted and replaced with the following:
“2.3.3.
Interest Rate and Pa y ment after Default. In the event that, and for so long as, any Event
of Default shall have occurred and be continuing, the outstanding
principal balance of the Loan shall accrue interest at the Default
Rate, calculated from the date the Default occurred which led to
such an Event of Default without regard to any grace or cure
periods contained herein. If all or any part of the principal
amount of the Loan is prepaid prior to the Permitted Prepayment
Date following the occurrence of an Event of Default prior to the
Permitted Prepayment Date, Borrower shall be required to pay
Lender, in addition to all other amounts then payable hereunder
(including, without limitation, (i) in the event that such
prepayment is received on a Monthly Payment Date, interest accruing
on such amount calculated
-3-
through and
including the end of the Interest Period in which such Monthly
Payment Date occurs, or (ii) in the event that such prepayment
is received on a date other than a Monthly Payment Date, interest
accruing on such amount calculated through and including the end of
the Interest Period in which the next Monthly Payment Date occurs),
a prepayment fee equal to one percent (1 %) of the amount of
principal being repaid together with a Spread Maintenance Premium
calculated with respect to the amount of principal being repaid and
Breakage Costs.”
(iii) For all
purposes under the Loan Agreement, Section 2.4.1 shall
be added or deleted and replaced with the following:
“2.4.1.
Voluntary Prepayments. Except as otherwise provided
herein, Borrower shall not have the right to prepay the Loan in
whole or in part. On and after the Permitted Prepayment Date
Borrower may, at its option and upon thirty (30) days prior
notice to Lender, prepay the Debt in whole but not in part;
provided, however, any prepayment received by Lender prior
to November 10, 2008 shall be accompanied by the applicable
Prepayment Fee. Any prepayment received by Lender on a date other
than a Monthly Payment Date shall include interest which would have
accrued thereon through and including the end of the Interest
Period in which the next Monthly Payment Date occurs; provided,
however, that no prepayment shall be permitted on any date
during the period commencing on the first calendar day immediately
following a Monthly Payment Date to, but not including, the
Determination Date in such calendar month, unless consented to by
Lender in its sole discretion. Any notice of prepayment shall be
revocable by Borrower, except during the period commencing on the
date five (5) Business Days prior to the applicable date of
prepayment set forth in such notice of prepayment and ending on
such date, during which time such notice is irrevocable; provided,
Borrower may not revoke more than two (2) such notices of
prepayment in any twelve (12) month period. If Borrower elects
to revoke a notice of prepayment in accordance with the prior
sentence, Borrower shall indemnify and pay to Lender immediately
upon request the actual out-of-pocket expenses incurred by Lender
in connection with such revocation, including but not limited to
Breakage Costs as well as any and all costs of any holder of any
portion of the Securities which was caused as a result of such
revocation.”
(iv) For all
purposes under the Loan Agreement, the following language shall be
added to the end of Section 2.4.2:
“Any
such prepayment received by Lender on a date other than a Monthly
Payment
|