THIRD AMENDMENT TO CREDIT AGREEMENT Effective as of June 30, 2006 among CNL HOSPITALITY PARTNERS, LP, as Borrower, CNL HOTELS & RESORTS, INC., as Parent, BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer, and The Other Lenders Party Hereto...
Exhibit
10.19
Published
CUSIP Number: 00000XXX0
THIRD
AMENDMENT TO CREDIT AGREEMENT
Effective
as of June 30, 2006
among
CNL
HOSPITALITY PARTNERS, LP,
as
Borrower,
CNL
HOTELS & RESORTS, INC.,
as
Parent,
BANK
OF AMERICA, N.A.,
as
Administrative Agent and L/C Issuer,
and
The
Other
Lenders Party Hereto
WACHOVIA
BANK NATIONAL ASSOCIATION
and
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Co-Syndication Agents
CALYON
NEW YORK BRANCH
and
CITICORP
NORTH AMERICA, INC.,
as
Co-Documentation Agents
BANC
OF AMERICA SECURITIES LLC,
as
Sole
Lead
Arranger and Sole Book Manager
THIRD
AMENDMENT TO CREDIT AGREEMENT
THIS
THIRD AMENDMENT TO CREDIT AGREEMENT (this “Agreement”)
is
effective as of June 30, 2006, by and among CNL
HOSPITALITY PARTNERS, LP,
a
Delaware limited partnership (“Borrower”),
CNL
HOTELS
& RESORTS,
INC.,
a
Maryland corporation (“Parent”),
each
lender from time to time party hereto (collectively, the “Lenders”
and
individually, a “Lender”),
and
BANK
OF AMERICA, N.A., as
Administrative Agent and L/C Issuer.
R E C I T A L S
A. Reference
is hereby made to that certain Credit Agreement dated as of September 30, 2005,
executed by Borrower, Parent, the Lenders party thereto (“Existing
Lenders”),
and
Administrative Agent (as amended, the “Credit
Agreement”).
B. Capitalized
terms used herein shall, unless otherwise indicated, have the respective
meanings set forth in the Credit Agreement.
C. Borrower,
Parent, Administrative Agent, and the Lenders desire to (a) increase the
amount of the Total Commitment by (i) adding the new Lenders set forth on
Schedule 2.1
hereto
(“New
Lenders;”
Existing Lenders and New Lenders are collectively called “Lenders”)
as
Lenders in accordance with Section 2.13
of the
Credit Agreement, and (ii) having certain Existing Lenders increase their
Commitment in accordance with Section 2.13
of the
Credit Agreement, and (b) otherwise modify certain provisions contained in
the Credit Agreement, in each case subject to the terms and conditions set
forth
herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto agree as follows:
1. Amendments
to the Credit Agreement.
(a) The
definition of “Applicable
Margin”
is
hereby deleted in its entirety and replaced with the following:
“Applicable
Margin”
means
(a) 1.25% per annum for Base Rate Loans and (b) 2.25% per annum for Eurodollar
Rate Loans and Letters of Credit.
(b) The
definition of “Consolidated
Leverage Ratio”
is
hereby deleted in its entirety and replaced with the following:
“Consolidated
Leverage Ratio”
means,
for
Parent and its Subsidiaries on a consolidated basis as of any date of
determination,
as of
the last day of any fiscal quarter, the percentage of (a) Consolidated Funded
Indebtedness (other than Excluded Contingent Obligations) to (b) the amount
obtained by dividing (i) Consolidated EBITDA for the four (4) fiscal quarters
ending on the date of determination by (ii) eight and one hundredths
(.085).
(c) The
definition of “Fund”
is
hereby deleted in its entirety and replaced with the following:
“Fund”
means
any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
(d) Section
1.1
is
hereby amended to add the following definitions of “Approved
Fund,”
“Assignee
Group,”
“Eligible
Assignee,”
“Fifth
Mezzanine Borrower,”“Fifth
Mezzanine Borrowing Date,”
and
“Fifth
Mezzanine Loan”
in
the
appropriate alphabetical order:
“Approved
Fund”
means
any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
“Assignee
Group”
means
two or more Eligible Assignees that are Affiliates of one another or two or
more
Approved Funds managed by the same investment advisor.
“Eligible
Assignee”
means
any Person that meets the requirements to be an assignee under Section
11.07(b)(iii),
(v),
and
(vi)
(subject
to such consents, if any, as may be required under Section
11.07(b)(iii)).
“Fifth
Mezzanine Borrower”
means
CNL Resort Junior Mezz, LP, a Delaware limited partnership who is a wholly-owned
indirect Subsidiary of Borrower.
“Fifth
Mezzanine Borrowing Date”
means
the date that the first funding occurs under the Fifth Mezzanine
Loan.
“Fifth
Mezzanine Loan”
means
the mezzanine loan financing to Fifth Mezzanine Borrower of up to $100,000,000
as contemplated and under terms and conditions set forth in that certain Loan
and Security Agreement dated as of January 9, 2006, between CNL Resort
Hotel, LP, CNL Resort Silver Properties, LP, CNL Grand Wailea Resort, LP, CNL
Biltmore Resort, LP, CNL Claremont Resort, LP, and CNL Desert Resort, LP, as
Borrowers, and German American Capital Corporation, as Lender, and the related
Mezzanine Loan Agreements as referenced therein.
(e) Section
2.04
is
hereby amended to add the following subsection
(c):
(c) Any
amounts borrowed by the Fifth Mezzanine Borrower under the Fifth Mezzanine
Loan
shall be immediately applied to prepay the Loans on a dollar-for-dollar basis,
in each case until the Total Outstandings are not more than the lesser of (a)
$200,000,000 and (b) sixty percent (60%) of the Borrowing Base.
(f) Section
2.05 is
hereby
deleted in its entirety and replaced with the following:
2.05 Termination
or Reduction of Commitments.
(a) Voluntary
Reductions.
Borrower
may, upon notice to Administrative Agent, which notice shall be irrevocable,
terminate the Aggregate Commitments, or from time to time permanently reduce
the
Aggregate Commitments; provided that
(i) any
such notice shall be received by Administrative Agent not later than 11:00
a.m.
five (5) Business Days prior to the date of termination or reduction, (ii)
any
such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) Borrower shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any reduction
of
the Aggregate Commitments, the Letter of Credit Sublimit exceeds the amount
of
the Aggregate Commitments, such Letter of Credit Sublimit shall be automatically
reduced by the amount of such excess.
(b) Mandatory
Reduction. The
Aggregate Commitments shall be permanently reduced dollar-for-dollar based
upon
the amount of all advances under the Fifth Mezzanine Loan, until the Aggregate
Commitments are equal to not more than $200,000,000.
(c) General
Requirements. Administrative
Agent will promptly notify the Lenders of any such notice of termination or
reduction of the Aggregate Commitments. Any reduction of the Aggregate
Commitments shall be applied to the Commitment of each Lender according to
its
Pro Rata Share. All utilization fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date
of
such termination.
(g) 4.01(b)
is
hereby
deleted in its entirety and replaced with the following:
(b) The
“Implied
Loan Amount”
with
respect to the Borrowing Base Properties means, as of the last day of any fiscal
quarter or any other applicable date of determination during the term hereof,
the product of (i) the Appraised Value (determined using the most-recent
Acceptable Appraisal delivered to Administrative Agent as required hereunder)
of
the Borrowing Base Property, and (ii) seventy-five percent (75%), provided
that on
and after the Fifth Mezzanine Borrowing Date, such percentage shall be reduced
to sixty percent (60%). Notwithstanding the foregoing, the amount attributable
to the Borrowing Base with respect to (i) any single Borrowing Base Property
shall not exceed thirty percent (30%) of the Borrowing Base, (ii) Borrowing
Base
Properties located in any single metropolitan statistical area shall not exceed
thirty percent (30%) of the Borrowing Base, and (iii) all Borrowing Base
Properties in operation for less than one (1) year shall not exceed fifteen
percent (15%) of the Borrowing Base. As of the Closing Date, the Implied Loan
Amount and the Appraised Value with respect to the Initial Borrowing Base
Properties are set forth on Schedule 4.01.
(h) 4.05(c)
is
hereby
deleted in its entirety and replaced with the following:
(c) Administrative
Agent shall not release any Collateral or any portion of any Collateral unless,
after giving effect to any such release (i) no Default or Event of Default
exists, and (ii) the Borrowing Base equals or exceeds $100,000,000 after giving
effect to such release.
(i) Section
5.02
is
hereby amended to add the following subsection
(d):
(d) With
respect to any Request for Credit Extension that would result in the Total
Outstandings exceeding $200,000,000, Administrative Agent shall be satisfied
that (i) all
necessary third-party consents have been obtained or amended and (ii) all
actions have been taken and completed in order for Administrative Agent to
maintain its first priority Liens in the Collateral,
including, without limitation, the payment by the applicable Person of all
mortgage, stamp, and filing taxes and all other fees related to the perfection
of the Collateral and the filing of any amendments to any Mortgages, for the
Obligations with respect to any Outstanding Amounts in excess of
$200,000,000.
(j) Article
VII
is
hereby amended to add the following Section
7.26:
7.26 Eligibility
of Fifth Mezzanine Loan. Borrower
and Parent shall and shall cause Fifth Mezzanine Borrower and its subsidiaries
to use their diligent best efforts to at all times remain eligible for the
Fifth
Mezzanine Loan.
(k) Section
8.15(a) is
hereby
deleted in its entirety and replaced with the following:
(a) Consolidated
Leverage Ratio.
Parent
shall not permit the Consolidated Leverage Ratio of Parent and its Subsidiaries
on a consolidated basis, as of the last day of any fiscal quarter, to be greater
than seventy-five percent (75%).
(l) Section
8.15(b) is
hereby
deleted in its entirety and replaced with the following:
(b) Consolidated
Fixed Charge Coverage Ratio.
Parent
shall not permit the Consolidated Fixed Charge Coverage Ratio of Parent and
its
Subsidiaries on a consolidated basis as of the last day of any fiscal quarter
of
Parent to be less than 1.40 to 1.0.
(m) Section
8.15(b) is
hereby
deleted in its entirety and replaced with the following:
(c) Borrowing
Base Debt Service Coverage Ratio.
Parent
and Borrower shall not permit, as of the last day of any fiscal quarter, the
ratio of (i) Adjusted NOI for the Borrowing Base Properties as of such date
for
the twelve (12) month period ending on such date of determination, to (ii)
Implied Debt Service, to be less than 1.35 to 1.0.
(n) Article
VIII
is
hereby amended to add the following Section
8.18:
8.18 Fifth
Mezzanine Loan.
Borrower and Parent shall not permit (a) the proceeds (other than the
customary closing costs related to the Fifth Mezzanine Loan) of advances under
the Fifth Mezzanine Loan to be used for any other purpose until the same have
been applied to repay the Total Outstandings and reduce the Aggregate
Commitments as required by Section 2.04(c)
and
Section
2.05(b),
and (b)
any lien or other encumbrance to exist on the rights of the Fifth Mezzanine
Borrower to obtain or in the required collateral for the Fifth Mezzanine Loan
(or on the interests of Borrower in Fifth Mezzanine Borrower), or otherwise
restrict the ability of the Fifth Mezzanine Borrower to obtain the Fifth
Mezzanine Loan and advances thereunder.
(o) Section
11.07 is
hereby
deleted in its entirety and replaced with the following:
11.07 Successors
and Assigns.
(a) Successors
and Assigns Generally.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that Borrower may not assign or otherwise transfer any of its rights
or
obligations hereunder without the prior written consent of Administrative Agent
and each Lender and no Lender may assign or otherwise transfer any of its rights
or obligations hereunder except (i) to an assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation
in
accordance with the provisions of subsection (d) of this Section, or (iii)
by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section
11.07
(and any
other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed
to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided
in
subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of Administrative Agent, the L/C Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments
by Lenders.
Any
Lender may at any time assign to one or more assignees all or a portion of
its
rights and obligations under this Agreement (including all or a portion of
its
Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations) at the time owing to it); provided
that any
such assignment shall be subject to the following conditions:
(i) Minimum
Amounts.
(A) in
the
case of an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the Loans at the time owing to it or in the case of an assignment
to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount
need be assigned; and
(B) in
any
case not described in subsection (b)(i)(A) of this Section, the aggregate amount
of the Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined
as of the date the Assignment and Assumption with respect to such assignment
is
delivered to Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$1,000,000 unless each of Administrative Agent and, so long as no Event of
Default has occurred and is continuing, Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however,
that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single assignee (or to an
assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met.
(ii) Proportionate
Amounts.
Each
partial assignment shall be made as an assignment of a proportionate part of
all
the assigning Lender’s rights and obligations under this Agreement with respect
to the Loans or the Commitment assigned;
(iii) Required
Consents.
No
consent shall be required for any assignment except to the extent required
by
subsection (b)(i)(B) of this Section and, in addition:
(A) the
consent of Borrower (such consent not to be unreasonably withheld or delayed)
shall be required unless (1) an Event of Default has occurred and is continuing
at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;
(B) the
consent of Administrative Agent (such consent not to be unreasonably withheld
or
delayed) shall be required if such assignment is to a Person that is not a
Lender, an Affiliate of such Lender or an Approved Fund with respect to such
Lender; and
(C) the
consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation
of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding).
(iv) Assignment
and Assumption.
The
parties to each assignment shall execute and deliver to Administrative Agent
an
Assignment and Assumption, together with a processing and recordation fee in
the
amount, if any, required as set forth in Schedule
11.07;
provided,
however,
that
Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not
a
Lender, shall deliver to Administrative Agent an Administrative
Questionnaire.
(v) No
Assignment to Borrower.
No such
assignment shall be made to Borrower or any of Borrower’s Affiliates or
Subsidiaries.
(vi) No
Assignment to Natural Persons.
No such
assignment shall be made to a natural person. Subject to acceptance and
recording thereof by Administrative Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and,
to
the extent of the interest assigned by such Assignment and Assumption, have
the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto) but shall continue to be entitled to the benefits of
Sections
3.01,
3.04,
3.05,
and
10.04
with
respect to facts and circumstances occurring prior to the effective date of
such
assignment. Upon request, Borrower (at its expense) shall execute and deliver
a
Note to the assignee Lender. Any assignment or transfer by a Lender of rights
or
obligations under this Agreement that does not comply with this subsection
shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection
(d)
of this Section.
(c) Register.
Administrative Agent, acting solely for this purpose as an agent of Borrower,
shall maintain at Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names
and
addresses of the Lenders, and the Commitments of, and principal amounts of
the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”).
The
entries in the Register shall be conclusive, and Borrower, Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by Borrower and any Lender, at any reasonable time
and
from time to time upon reasonable prior notice.
(d) Participations.
Any
Lender may at any time, without the consent of, or notice to, Borrower or
Administrative Agent, sell participations to any Person (other than a natural
person or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”)
in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations) owing to it); provided
that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Borrower,
Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.
Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided
that
such agreement or instrument may provide that such Lender will not, without
the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section
11.01
that
affects such Participant. Subject to subsection (e) of this Section, Borrower
agrees that each Participant shall be entitled to the benefits of Sections
3.01,
3.04
and
3.05 to
the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law,
each
Participant also shall be entitled to the benefits of Section 11.15 as
though
it were a Lender, provided
such
Participant agrees to be subject to Section
2.12
as
though it were a Lender.
(e) Limitations
upon Participant Rights.
A
Participant shall not be entitled to receive any greater payment under
Section
3.01
or
3.04 than
the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation
to
such Participant is made with Borrower’s prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to
the
benefits of Section 3.01
unless
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of Borrower, to comply with Section
3.01(e)
as
though it were a Lender.
(f) Certain
Pledges.
Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note, if any)
to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided
that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) Electronic
Execution of Assignments.
The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures
or
the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature or
the
use of a paper-based recordkeeping system, as the case may be, to the extent
and
as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
(h) Resignation
as L/C Issuer after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time Bank
of America assigns all of its Commitment and Loans pursuant to subsection (b)
above, Bank of America may, upon thirty (30) days’ notice to Borrower and the
Lenders, resign as L/C Issuer, Borrower shall be entitled to appoint from among
the Lenders a successor L/C Issuer hereunder; provided,
however,
that no
failure by Borrower to appoint any such successor shall affect the resignation
of Bank of America as L/C Issuer, as the case may be. If Bank of America resigns
as L/C Issuer, it shall retain all the rights, powers, privileges and duties
of
the L/C Issuer hereunder with respect to all Letters of Credit outstanding
as of
the effective date of its resignation as L/C Issuer and all L/C Obligations
with
respect thereto (including the right to require the Lenders to make Base Rate
Committed Loans or fund risk participations in Unreimbursed Amounts pursuant
to
Section
2.03(c)).
Upon
the appointment of a successor L/C Issuer, (a) such successor shall succeed
to
and become vested with all of the rights, powers, privileges and duties of
the
retiring L/C Issuer, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to Bank of
America to effectively assume the obligations of Bank of America with respect
to
such Letters of Credit.
(p) The
Credit Agreement is hereby amended to add the following new Section
11.23:
11.23 No
Advisory or Fiduciary Responsibility. In
connection with all aspects of each transaction contemplated hereby, Borrower
and Parent each acknowledge and agree, and acknowledge their respective
Affiliates’ understanding, that: (i) the credit facility provided for hereunder
and any related arranging or other services in connection therewith (including
in connection with any amendment, waiver or other modification hereof or of
any
other Loan Document) are an arm’s-length commercial transaction between
Borrower, Parent and their respective Affiliates, on the one hand, and
Administrative Agent and the Arranger, on the other hand, and each of Borrower
and Parent is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated hereby
and by the other Loan Documents (including any amendment, waiver or other
modification hereof or thereof); (ii) in connection with the process leading
to
such transaction, Administrative Agent and the Arranger each is and has been
acting solely as a principal and is not the financial advisor, agent or
fiduciary, for Borrower, Parent, or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither
Administrative Agent nor the Arranger has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of Borrower or Parent with respect
to any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof
or
of any other Loan Document (irrespective of whether Administrative Agent or
the
Arranger has advised or is currently advising Borrower, Parent, or any of their
respective Affiliates on other matters) and neither Administrative Agent nor
the
Arranger has any obligation to Borrower, Parent, or any of their respective
Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; (iv)
Administrative Agent and the Arranger and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ
from
those of Borrower, Parent, and their respective Affiliates, and neither
Administrative Agent nor the Arranger has any obligation to disclose any of
such
interests by virtue of any advisory, agency or fiduciary relationship; and
(v)
Administrative Agent and the Arranger have not provided and will not provide
any
legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Loan Document) and each of Borrower and
Parent has consulted its own legal, accounting, regulatory and tax advisors
to
the extent it has deemed appropriate. Each of Borrower and Parent hereby waives
and releases, to the fullest extent permitted by law, any claims that it may
have against Administrative Agent and the Arranger with respect to any breach
or
alleged breach of agency or fiduciary duty.
(q) Exhibit
C
is
hereby added in the form of Exhibit
C
attached
hereto
(r) Exhibit
E is
hereby
added in the form of Exhibit
E
attached
hereto.
2. Lenders
and Commitments.
(a) Pursuant
to Section
2.13,
the
Lenders hereby agree that, as of the date hereof, each Lender’s Commitment is as
set forth on Schedule 2.01
attached
hereto.
(b) By
their
execution of this Agreement, each New Lender is hereby admitted as a Lender
pursuant to Section 2.13
of the
Credit Agreement and each New Lender’s signature page to this Agreement shall be
deemed to be its signature page to the Credit Agreement.
(c) By
their
execution of this Agreement, each Existing Lender that is an Increasing Lender
pursuant to Section 2.13
hereby
acknowledges and agrees to the increase in its Commitment set forth on
Schedule 2.01
attached
hereto.
3. Amendments
to Credit Agreement and Other Loan Documents.
(a) All
references in the Loan Documents to the Credit Agreement shall henceforth
include references to the Credit Agreement as modified and amended by this
Agreement, and as may, from time to time, be further modified, amended,
restated, extended, renewed, and/or increased.
(b) Any
and
all of the terms and provisions of the Loan Documents are hereby amended and
modified wherever necessary, even though not specifically addressed herein,
so
as to conform to the amendments and modifications set forth herein.
4. Ratifications.
Each of
Borrower and Parent (a) ratifies and confirms all provisions of the Loan
Documents as amended by this Agreement, (b) ratifies and confirms that all
guaranties and assurances, granted, conveyed, or assigned to the Credit Parties
under the Loan Documents are not released, reduced, or otherwise adversely
affected by this Agreement and continue to guarantee and assure full payment
and
performance of the present and future Obligation, and (c) agrees to perform
such acts and duly authorize, execute, acknowledge, deliver, file, and record
such additional documents and certificates as Administrative Agent may
reasonably request in order to create, preserve and protect those guaranties
and
assurances.
5. Representations.
Each of
Borrower and Parent represents and warrants to Lenders that as of the date
of
this Agreement: (a) this Agreement has been duly authorized, executed, and
delivered by Borrower; (b) no action of, or filing with, any Governmental
Authority is required to authorize, or is otherwise required in connection
with,
the execution, delivery, and performance of this Agreement other than the
reporting and filing of this Agreement pursuant to Legal Requirements regarding
securities; (c) the Loan Documents, as amended by this Agreement, are valid
and binding upon Borrower and are enforceable against Borrower in accordance
with their respective terms, except as limited by Debtor Relief Laws and general
principles of equity; (d) the execution, delivery, and performance of this
Agreement does not require the consent of any other Person and do not and will
not constitute a violation of any Legal Requirements, order of any Governmental
Authority, or material agreements to which Parent, Borrower, or any of their
Subsidiaries is a party or by which Parent, Borrower or any of their
Subsidiaries is bound; (e) all representations and warranties in the Loan
Documents are true and correct in all material respects on and as of the date
of
this Agreement, except to the extent that (i) any of them speak to a
different specific date, or (ii) the facts on which any of them were based
have been changed by transactions contemplated or permitted by the Credit
Agreement; and (f) both before and after giving effect to this Agreement,
no Default exists.
6. Conditions.
This
Agreement shall not be effective unless and until:
(a) this
Agreement is executed by Borrower, Parent, Administrative Agent, and each
Lenders, and the ratification attached hereto is executed by each Subsidiary
Guarantor;
(b) Administrative
Agent shall have received a Note payable to the order of each New Lender that
requests a Note, executed by Borrower;
(c) Administrative
Agent receives a certificate executed by Responsible Officer of each of Parent
and Borrower certifying (i) the name of each of its officers who are
authorized to sign this Agreement and the other documents executed in connection
herewith, (ii) a true and correct copy of the Resolutions of Borrower that
authorize the execution, delivery, and performance of this Agreement and the
other documents executed in connection herewith, and (iii) that the
articles or certificate of incorporation, bylaws, and other Constituent
Documents of such Person attached thereto;
(d) Administrative
Agent receives an opinion of counsel to Parent and Borrower in form and
substance acceptable to Administrative Agent; and
(e) Borrower
shall have paid Administrative Agent all fees required to be paid by Borrower
under the Loan Documents and any fee letter agreements.
7. Continued
Effect.
Except
to the extent amended hereby or by any documents executed in connection
herewith, all terms, provisions, and conditions of the Credit Agreement and
the
other Loan Documents, and all documents executed in connection therewith, shall
continue in full force and effect and shall remain enforceable and binding
in
accordance with their respective terms.
8. Miscellaneous.
Unless
stated otherwise (a) the singular number includes the plural and vice
versa
and
words of any gender include each other gender, in each case, as appropriate,
(b)
headings and captions may not be construed in interpreting provisions, (c)
this
Agreement shall be construed -- and its performance enforced -- under New York
law, (d) if any part of this Agreement is for any reason found to be
unenforceable, all other portions of it nevertheless remain enforceable, and
(e)
this Agreement may be executed in any number of counterparts with the same
effect as if all signatories had signed the same document, and all of those
counterparts must be construed together to constitute the
same document.
9. Parties.
This
Agreement binds and inures to each of the parties hereto and their respective
successors and permitted assigns.
10. Entireties.
The Credit Agreement and the other Loan Documents, as amended by this Agreement,
represent the final agreement between the parties about the subject matter
of
the Credit Agreement and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.
[Remainder
of Page Intentionally Left Blank; Signature Pages to Follow.]
EXECUTED
as of the first date written above.
| BORROWER: | ||
|
CNL HOSPITALITY PARTNERS, LP, a Delaware limited
partnership
|
||
| |
|
By: CNL
HOSPITALITY GP CORP.,
a Delaware corporation, its General Partner |
| By: | /s/ Xxxx X. Xxxxx, Xx. | |
|
Name: Xxxx X. Xxxxx, Xx. |
||
| Title : Vice President | ||
| PARENT: | ||
| CNL HOTELS & RESORTS, INC., a Maryland corporation | ||
| |
|
|
| By: | /s/ C. Xxxxx Xxxxxxxxxx | |
|
Name: C. Xxxxx Xxxxxxxxxx |
||
| Title: Executive Vice President | ||
| BANK OF AMERICA, N.A., as Administrative Agent | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxx | |
|
Name: Xxxx X. Xxxxxx |
||
| Title: Senior Vice President | ||
|
BANK
OF AMERICA, N.A.,
as
a Lender and L/C Issuer
|
||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxx | |
|
Name: Xxxx X. Xxxxxx |
||
| Title : Senior Vice President | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender | ||
| |
|
|
|
|
By: | /s/ Xxxxxx X. Xxxxxxxx |
|
Name: Xxxxxx X. Xxxxxxxx |
||
| Title : Vice President | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxx | |
|
Name: Xxxxx Xxxxxxx |
||
| Title: Director | ||
| WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxxxxx | |
|
Name:Xxxx X. Xxxxxxxxx |
||
| Title: Vice President | ||
|
CALYON
NEW YORK BRANCH,
as
a Lender
|
||
| |
|
|
| By: | /s/ Xxx Xxxxxxxx | |
|
Name: Xxx Xxxxxxxx |
||
| Title: Director | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name: Xxxxx X. Xxxxxxx |
||
| Title: Director | ||
| CITICORP NORTH AMERICA, INC., as a Lender | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxx | |
|
Name: Xxxx X. Xxxxx |
||
| Title: Vice President | ||
| BARCLAYS CAPITAL REAL ESTATE INC., as a Lender | ||
| |
|
|
| By: | /s/ XxxxXxx Xxxx | |
|
Name: XxxxXxx Xxxx |
||
| Title: Vice President | ||
SCHEDULE
2.1
COMMITMENTS
AND
APPLICABLE PERCENTAGES
|
Lender
|
Commitment
|
Applicable
Percentage
|
|
Bank
of America N.A.
|
$46,666,666.67
|
19.44444446%
|
|
Deutsche
Bank Trust Company Americas
|
$45,000,000.00
|
18.750000000%
|
|
Wachovia
Bank, National Association
|
$45,000,000.00
|
18.750000000%
|
|
Calyon
New York Branch
|
$33,333,333.33
|
13.888888888%
|
|
Citicorp
North America, Inc.
|
$35,000,000.00
|
14.583333333%
|
|
Barclays
Capital Real Estate Inc.
|
$35,000,000.00
|
14.583333333%
|
|
Total
|
$240,000,000.00
|
100.000000000%
|
EXHIBIT
C
FORM
OF COMPLIANCE CERTIFICATE
Financial
Statement Date: ,
|
To:
|
Bank
of America, N.A., as Administrative
Agent
|
Ladies
and Gentlemen:
Reference
is made to that certain Credit Agreement, dated as of September 30, 2005
(as amended, restated, extended, supplemented, or otherwise modified in writing
from time to time, the “Agreement;”
the
terms defined therein being used herein as therein defined), among CNL
Hospitality Partners, LP, a Delaware limited partnership (“Borrower”),
CNL
Hotels & Resorts, Inc., a Maryland corporation, the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent and
L/C
Issuer.
The
undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the ______________________ of Borrower, and that, as such, he/she
is
authorized to execute and deliver this Certificate to Administrative Agent
on
the behalf of Borrower, and that:
[Use
following paragraph 1 for fiscal year-end
financial statements]
1. Attached
hereto as Schedule 1
are the
year-end audited financial statements required by Section 7.01(a)
of the
Agreement for the fiscal year of Borrower ended as of the above date, together
with the report and opinion of an independent certified public accountant
required by such section.
[Use
following paragraph 1 for fiscal quarter-end
financial statements]
1. Attached
hereto as Schedule 1
are the
unaudited financial statements required by Section 7.01(b)
of the
Agreement for the fiscal quarter of Borrower ended as of the above date. Such
financial statements fairly present the financial condition, results of
operations and cash flows of Borrower and its Subsidiaries in accordance with
GAAP as at such date and for such period, subject only to normal year-end audit
adjustments and the absence of footnotes.
2. The
undersigned has reviewed and is familiar with the terms of the Agreement and
has
made, or has caused to be made under his/her supervision, a detailed review
of
the transactions and condition (financial or otherwise) of Borrower during
the
accounting period covered by the attached financial statements.
3. A
review
of the activities of Borrower during such fiscal period has been made under
the
supervision of the undersigned with a view to determining whether during such
fiscal period Borrower performed and observed all its Obligations under the
Loan
Documents, and [select one:]
[to
the
best knowledge of the undersigned during such fiscal period, Borrower performed
and observed each covenant and condition of the Loan Documents applicable to
it.]
--or--
[the
following covenants or conditions have not been performed or observed and the
following is a list of each such Default and its nature and
status:]
4. The
representations and warranties of Borrower contained in Article VI
of the
Agreement, or which are contained in any document furnished at any time
under
or in
connection with the Loan Documents, are true and correct on and as of the date
hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date,
and
except that for purposes of this Compliance Certificate, the representations
and
warranties contained in subsections (a) and (b) of Section 6.05
of the
Agreement shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 7.01
of the
Agreement, including the statements in connection with which this Compliance
Certificate is delivered.
5. The
financial covenant analyses and information set forth on Schedule 2
attached
hereto are true and accurate on and as of the date of this
Certificate.
IN
WITNESS WHEREOF,
the
undersigned has executed this Certificate as of
__________, __, ___.
BORROWER:
CNL
HOSPITALITY PARTNERS, LP,
a
Delaware limited partnership
|
By:
|
CNL
HOSPITALITY GP CORP.,
a
Delaware corporation, its General
Partner
|
By:
Name:
Title:
For
the
Quarter/Year ended ___________________(“Statement
Date”)
|
SCHEDULE
2
to
the Compliance Certificate
($
in 000’s)
|
|
I. Section 8.06(d)
- Permitted Distributions.
|
|
A. Line
H from prior period ($50,000,000 initial quarter
post-closing):
|
|
B. Cash
Available for Distribution (for the subject quarter):
|
|
1.
Consolidated EBITDA (for the subject quarter):
|
|
2.
Net refundable membership deposits paid in cash (for
the
|
|
subject
quarter):
|
|
3.
Amount of scheduled principal payments on Consolidated Indebtedness
(for
the subject quarter):
|
|
4.
Consolidated Interest Charges (for the subject quarter):
|
|
5.
Cash Available for Distribution (for the subject quarter)
|
|
(I.B.1
+ 2 - 3 - 4):
|
|
C. Permitted
Distributions (A + B.5):
|
|
D. Dividends
or distributions paid by Parent (for the subject quarter):
|
|
E. Retirement,
purchase, or redemption of any of its Equity Interests (for the
subject
quarter):
|
|
F. Restricted
Payments (for the subject quarter) (D + E):
|
|
G. Excess
(deficit) for covenant compliance (C - F):
|
|
H. If
deficit in G, has Parent made dividends or distributions in excess
of
minimum required to maintain REIT status? (yes or no):
|
|
(If
H = “no,” then in compliance)
|
|
II. Section 8.15(b)
- Consolidated Leverage Ratio.
|
|
A. Consolidated
Funded Indebtedness (other than Excluded Contingent Obligations)
at
Statement Date: $
|
|
B. Consolidated
EBITDA $
|
|
C. Consolidated
Leverage Ratio (Line II.A. ¸
(Line
II.B ¸
.085)): %
|
|
Maximum
permitted: 75%
|
|
III. Section 8.15(c)
- Consolidated Fixed Charge Coverage Ratio.
|
|
A. Consolidated
EBITDA:
|
|
1. Consolidated
Net Income for Subject Period: $
|
|
2. Consolidated
Interest Charges for Subject Period: $
|
|
3. Provision
for income taxes for Subject Period: $
|
|
4. Depreciation
expenses for Subject Period: $
|
|
5. Amortization
expenses for intangibles for Subject Period: $
|
|
6. FF&E
Reserves: $
|
|
7. Consolidated
EBITDA (Lines III.A.1 + 2 + 3 + 4 + 5 - 6): $
|
|
B. Fixed
Charges:
|
|
1. Debt
service: $
|
|
2. Restricted
Payments: $
|
|
3. Fixed
Charges (Line III.D.1 plus
Line III.D.2): $
|
|
C. Consolidated
Fixed Charge Coverage Ratio
|
|
[(Line
III.A.7. + Line III.B. + Line III.C.) ¸
(Line III.D.3)]: to
1
|
|
Minimum
required:
1.40
to 1.0
|
|
IV.
|
Section 8.15(d)
- Borrowing Base Debt Service Coverage
Ratio.
|
See
Borrowing Base Report for a calculation of the ratio.
EXHIBIT
E
ASSIGNMENT
AND ASSUMPTION
This
Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between
[the][each]1 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and
[the][each] Assignee
identified in item 2 below ([the][each, an] “Assignee”). [It is understood and
agreed that the rights and obligations of [the Assignors][the
Assignees]2 hereunder
are several and not joint.]3
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Credit Agreement identified below (the “Credit Agreement”), receipt
of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For
an
agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns
to [the Assignee][the respective Assignees], and [the][each] Assignee hereby
irrevocably purchases and assumes from [the Assignor][the respective Assignors],
subject to and in accordance with the Standard Terms and Conditions and the
Credit Agreement, as of the Effective Date inserted by the Administrative Agent
as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities
as Lenders] under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations
of
[the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit included
in such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of
[the
Assignor (in its capacity as a Lender)][the respective Assignors (in their
respective capacities as Lenders)] against any Person, whether known or unknown,
arising under or in connection with the Credit Agreement, any other documents
or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations
sold
and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses
(i) and (ii) above being referred to herein collectively as [the][an] “Assigned
Interest”). Each such sale and assignment is without recourse to [the][any]
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by [the][any] Assignor.
1. Assignor[s]: ______________________________
______________________________
2. Assignee[s]: ______________________________
______________________________
|
[for
each Assignee, indicate [Affiliate][Approved Fund] of [identify
Lender]]
|
3. Borrower: CNL
Hospitality Partners, LP
|
4.
|
Administrative
Agent:
|
Bank
of America, N.A., as Administrative Agent under the Credit
Agreement
|
5. Credit
Agreement: The
Credit Agreement, dated as of September 30, 2005, among CNL Hospitality
Partners, LP, a Delaware limited partnership, CNL Hotels & Resorts, Inc., a
Maryland corporation, the Lenders parties thereto, and Bank of America, N.A.,
as
Administrative Agent
6. Assigned
Interest[s]:4 The
reference to “Loans” in the table should be used only if the Credit Agreement
provides for Term Loans.
|
Assignor[s]5 List
each Assignor, as appropriate.
|
Assignee[s]6 List
each Assignee, as appropriate.
|
Facility
Assigned7 Fill
in the appropriate terminology for the types of facilities under
the
Credit Agreement that are being assigned under this Assignment (e.g.
“Revolving Credit Commitment”, “Term Loan Commitment”,
etc.).
|
Aggregate
Amount
of
Commitment
for
all Lenders8 Amounts
in this column and in the column immediately to the right to be adjusted
by the counterparties to take into account any payments or prepayments
made between the Trade Date and the Effective Date.
|
Amount
of
Commitment
Assigned
|
Percentage
Assigned
of
Commitment
|
CUSIP
Number
|
|
____________
|
$________________
|
$_________
|
____________%
|
|||
|
____________
|
$________________
|
$_________
|
____________%
|
|||
|
____________
|
$________________
|
$_________
|
____________%
|
[7. Trade
Date: __________________]9 To
be completed if the Assignor and the Assignee intend that the minimum assignment
amount is to be determined as of the Trade Date.
Effective
Date: __________________, 20__
[TO
BE
INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The
terms
set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME
OF
ASSIGNOR]
By:
_____________________________
Title:
ASSIGNEE
[NAME
OF
ASSIGNEE]
By:
_____________________________
Title:
[Consented
to and]10
Accepted:
BANK
OF
AMERICA, N.A., as
Administrative
Agent
By:
_________________________________
Title:
[Consented
to:]11
By:
_________________________________
Title:
ANNEX
1 TO ASSIGNMENT AND ASSUMPTION
CNL
HOSPITALITY PARTNERS, LP CREDIT AGREEMENT
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1. Representations
and Warranties.
1.1. Assignor.
[The][Each] Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such]
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan
Document.
1.2. Assignee.
[The][Each] Assignee (a) represents and warrants that (i) it has full power
and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all the
requirements to be an assignee under Section
11.07(b)(iii),
(v)
and
(vi)
of the
Credit Agreement (subject to such consents, if any, as may be required under
Section
11.07(b)(iii)
of the
Credit Agreement), (iii) from and after the Effective Date, it shall be bound
by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of [the][the relevant] Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets
of the type represented by [the][such] Assigned Interest and either it, or
the
Person exercising discretion in making its decision to acquire [the][such]
Assigned Interest, is experienced in acquiring assets of such type, (v) it
has
received a copy of the Credit Agreement, and has received or has been accorded
the opportunity to receive copies of the most recent financial statements
delivered pursuant to Section
7.01
thereof,
as applicable, and such other documents and information as it deems appropriate
to make its own credit analysis and decision to enter into this Assignment
and
Assumption and to purchase [the][such] Assigned Interest, (vi) it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is
a
Foreign Lender, attached hereto is any documentation required to be delivered
by
it pursuant to the terms of the Credit Agreement, duly completed and executed
by
[the][such] Assignee; and (b) agrees that (i) it will, independently and without
reliance upon the Administrative Agent, [the][any] Assignor 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 Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
2. Payments.
From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts
which have accrued to but excluding the Effective Date and to [the][the
relevant] Assignee for amounts which have accrued from and after the Effective
Date.
3. General
Provisions.
This
Assignment and Assumption shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed
in
accordance with, the law of the State of New York.
4 The
reference to “Loans” in the table should be used only if the Credit Agreement
provides for Term Loans.
5 List
each
Assignor, as appropriate.
6 List
each
Assignee, as appropriate.
7 Fill
in
the appropriate terminology for the types of facilities under the Credit
Agreement that are being assigned under this Assignment (e.g. “Revolving Credit
Commitment”, “Term Loan Commitment”, etc.).
8 Amounts
in this column and in the column immediately to the right to be adjusted
by the
counterparties to take into account any payments or prepayments made
between the
Trade Date and the Effective Date.
9
To
be
completed if the Assignor and the Assignee intend that the minimum
assignment
amount is to be determined as of the Trade Date.
RATIFICATION
To
induce
Administrative Agent, L/C Issuer, and Lenders (collectively, the “Credit
Parties”)
to
enter into this Third
Amendment to Credit Agreement, the undersigned jointly and severally
(a) consent and agree to this Third Amendment to Credit Agreement execution
and delivery, (b) ratify and confirm that all guaranties, assurances, and Liens
granted, conveyed, or assigned to the Credit Parties under the Loan Documents,
including, without limitation, the Liens granted under the Mortgages, are not
released, diminished, impaired, reduced, or otherwise adversely affected by
this
Third Amendment to Credit Agreement and continue to guarantee, assure, and
secure the full payment and performance of all present and future Obligations,
including, without limitation, the increase in the Obligations as contemplated
by this Third Amendment to Credit Agreement (except to the extent specifically
limited by the terms of such guaranties, assurances, or Liens), and (c) waive
notice of acceptance of this Third Amendment to Credit Agreement, which consent
and agreement binds the undersigned and their successors and permitted assigns
and inures to the Credit Parties and their respective successors and permitted
assigns.
RFS
PARTNERSHIP, L.P.,
a
Tennessee limited partnership
By: CNL
ROSE GP CORP.,
a
Delaware corporation, its General Partner
By:
Name:
Title:
ROSE
SPE 1, LP, a
Delaware limited partnership
By: ROSE
SPE 1 GP, LLC,
a
Delaware limited liability company, its General Partner
By:
Name:
Title:
CNL
TAMPA INTERNATIONAL HOTEL PARTNERSHIP, LP,
a
Delaware limited partnership
By: CNL
TAMPA INTERNATIONAL GP, LLC,
a
Delaware limited liability company, its General Partner
By:
Name:
Title:
10 To
be added only if the consent of the Administrative Agent is required
by the
terms of the Credit Agreement.
11 To
be
added only if the consent of the Borrower and/or other parties (e.g.
L/C Issuer)
is required by the terms of the Credit Agreement.
