Exhibit 10.98
MEZZANINE NOTE
(Fourth Mezzanine)
New York, New York
$50,000,000 January 9, 2006
MEZZANINE NOTE (Fourth Mezzanine), dated as of January 9, 2006 (this
MEZZANINE NOTE), by CNL RESORT SUB INTERMEDIATE MEZZ, LP, a Delaware limited
partnership (MEZZANINE BORROWER) having an office at c/o CNL Hotels & Resorts,
Inc., 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, in favor of GERMAN
AMERICAN CAPITAL CORPORATION, a Maryland corporation (together with its
successors and assigns, MEZZANINE LENDER), having an office at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
NOW, THEREFORE, FOR VALUE RECEIVED, Mezzanine Borrower promises to pay to
the order of Mezzanine Lender the Principal Amount (as defined below), together
with interest from the date hereof and other fees, expenses and charges as
provided in this Mezzanine Note.
1. DEFINED TERMS.
a. Capitalized terms used but not otherwise defined herein shall have
the respective meanings given thereto in the Mezzanine Loan
Agreement (as defined below), unless otherwise expressly provided
herein. All references to sections shall be deemed to be references
to sections of this Mezzanine Note, unless otherwise indicated.
b. The following terms shall have the meanings ascribed thereto:
DEFAULT RATE shall mean, with respect to an acceleration of the
Mezzanine Loan, a rate per annum equal to the lesser of (a) the
Maximum Legal Rate and (b) three percent (3%) above the LIBOR Rate,
adjusted from time to time as set forth herein.
INTEREST DETERMINATION DATE shall mean, with respect to each
Interest Period, the date which is two (2) Business Days prior to
the first (1st) day of each calendar month. When used with respect
to an Interest Determination Date, Business Day shall mean any day
on which dealings in deposits in U.S. Dollars are transacted in the
London interbank market.
INTEREST PERIOD shall mean each interest period commencing on the
first calendar day of a calendar month and ending on (and including)
the last calendar day of such calendar month; provided that the
first interest period shall commence on the date hereof.
LIBOR shall mean, with respect to any Interest Determination Date,
the rate (expressed as a percentage per annum rounded upwards, if
necessary, to the nearest one hundredth (1/100) of one percent (1%))
for deposits in U.S. Dollars for a one (1) month period that
appears on Telerate Page 3750 (as defined below) as of 11:00 a.m.,
London time, on such Interest Determination Date. If such rate does
not appear on Telerate Page 3750 as of 11:00 a.m., London time, on
the applicable Interest Determination Date, the Mezzanine Lender
shall request the principal London office of any four (4) prime
banks in the London interbank market selected by the Mezzanine
Lender to provide such banks' quotations of the rates at which
deposits in U.S. Dollars are offered by such banks at approximately
11:00 a.m., London time, to prime banks in the London interbank
market for a one (1) month period commencing on the first day of the
related Interest Period and in a principal amount that is
representative for a single transaction in the relevant market at
the relevant time. If at least two (2) such offered quotations are
so provided, LIBOR will be the arithmetic mean of such quotations
(expressed as a percentage and rounded upwards, if necessary, to the
nearest one hundredth (1/100) of one percent (1%)). If fewer than
two (2) such quotations are so provided, the Mezzanine Lender will
request major banks in New York City selected by the Mezzanine
Lender to quote such banks' rates for loans in U.S. Dollars to
leading European banks as of approximately 11:00 a.m., New York City
time, on the applicable Interest Determination Date for a one (1)
month period commencing on the first day of the related Interest
Period and in an amount that is representative for a single
transaction in the relevant market at the relevant time. If at least
two (2) such rates are so provided, LIBOR will be the arithmetic
mean of such rates (expressed as a percentage and rounded upwards,
if necessary, to the nearest one hundredth (1/100) of one percent
(1%)). If fewer than two (2) rates are so provided, then LIBOR will
be LIBOR used to determine the LIBOR Rate during the immediately
preceding Interest Period.
LIBOR MARGIN shall mean 2.7205% per annum.
LIBOR RATE shall mean, with respect to each Interest Period, an
interest rate per annum equal to the sum of (a) LIBOR, determined as
of the Interest Determination Date immediately preceding the
commencement of such Interest Period, plus (b) the LIBOR Margin.
MATURITY DATE shall mean February 1, 2011, or such earlier date on
which the final payment of principal of this Mezzanine Note becomes
due and payable as provided in the Mezzanine Loan Agreement or this
Mezzanine Note, whether at such stated maturity date, by declaration
of acceleration, or otherwise; provided, notwithstanding the
foregoing, the Maturity Date shall automatically be deemed to refer
to any earlier date that the Mortgage Loan is defeased in full or
paid in full (including, without limitation, as a result of an
acceleration thereof, a refinancing or otherwise).
MATURITY DATE PAYMENT shall have the meaning set forth in Section
3(d).
MEZZANINE BORROWER shall have the meaning provided in the first
paragraph hereof.
MEZZANINE LENDER shall have the meaning provided in the first
paragraph hereof.
2
MEZZANINE LOAN AGREEMENT shall mean the Mezzanine Loan and Security
Agreement (Fourth Mezzanine), dated the date hereof, between
Mezzanine Borrower and Mezzanine Lender.
MEZZANINE NOTE shall have the meaning provided in the first
paragraph hereof.
MORTGAGE BORROWER shall mean, collectively, CNL Biltmore Resort, LP,
CNL Resort Hotel, LP, CNL Resort Silver Properties, LP, CNL Grand
Wailea Resort, LP, CNL Resort Claremont, LP, and CNL Desert Resort,
LP.
MORTGAGE LOAN shall mean that certain $1,000,000,000 loan, made as
of the date hereof, from German American Capital Corporation to
Mortgage Borrower, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.
PAYMENT DATE shall be the first calendar day of each calendar month
and if such day is not a Business Day, then the Business Day
immediately preceding such day, commencing on March 1, 2006 and
continuing to and including the Maturity Date.
PREPAYMENT DATE shall have the meaning provided in Section 4(a)(i).
PREPAYMENT FEE shall mean a non-refundable fee equal to in
connection with Mezzanine Borrower's payment of the Mezzanine Loan
(or any part thereof, to the extent permitted by the Loan Documents
(Fourth Mezzanine)) (i) on or after the date hereof to and including
March 1, 2006, 1.00% of the outstanding Principal Amount then being
paid, (ii) after March 1, 2006 and to and including April 1, 2006,
0.95% of the outstanding Principal Amount then being paid, (iii)
after April 1, 2006 and to and including May 1, 2006, 0.85% of the
outstanding Principal Amount then being paid, (iv) after May 1, 2006
and to and including June 1, 2006, 0.80% of the outstanding
Principal Amount then being paid, (v) after June 1, 2006 and to and
including July 1, 2006, 0.75% of the outstanding Principal Amount
then being paid, (vi) after July 1, 2006 and to and including August
1, 2006, 0.70% of the outstanding Principal Amount then being paid,
(vii) after August 1, 2006 and to and including September 1, 2006,
0.65% of the outstanding Principal Amount then being paid, (viii) on
September 1, 2006 and to and including October 1, 2006, 0.60% of the
outstanding Principal Amount then being paid, (ix) after October 1,
2006 and to and including November 1, 2006, 0.55% of the outstanding
Principal Amount then being paid, (x) after November 1, 2006 and to
and including December 1, 2006, 0.50% of the outstanding Principal
Amount then being paid, (xi) after December 1, 2006 and to and
including January 1, 2007, 0.45% of the outstanding Principal Amount
then being paid, (xii) after January 1, 2007 and to and including
February 1, 2007, 0.40% of the outstanding Principal Amount then
being paid, (xiii) after February 1, 2007 and to and including March
1, 2007, 0.35% of the outstanding Principal Amount then being paid,
(xiv) after March 1, 2007 and to and including April 1, 2007, 0.30%
of the outstanding Principal Amount then being paid, (xv) after
April 1, 2007 and to and including May 1, 2007 0.25% of the
outstanding Principal Amount then being paid, (xvi) after May 1,
2007 and to and including June 1, 2007, 0.20% of the outstanding
Principal Amount then being paid, (xvii) after June 1, 2007 and to
and including July 1, 2007, 0.15% of the outstanding Principal
Amount then being paid, and (xviii) after July 1, 2007 and to and
3
including August 1, 2007, 0.10% of the outstanding Principal Amount
then being paid. No Prepayment Fee shall be due on any payments made
after August 1, 2007. The Prepayment Fee shall be payable
simultaneously with Mezzanine Borrower's payment of the Principal
Amount.
PREPAYMENT NOTICE shall have the meaning provided in Section
4(a)(i).
PRINCIPAL AMOUNT shall mean Fifty Million Dollars ($50,000,000) or
so much as may be outstanding under this Mezzanine Note from time to
time.
TELERATE PAGE 3750 shall mean the display designated as "Page 3750"
on the Dow Xxxxx Telerate Service (or such other page as may replace
Page 3750 on that service) or such other service as may be nominated
by the British Bankers' Association as the information vendor for
the purpose of displaying British Bankers' Association Interest
Settlement Rates for U.S. Dollar deposits.
2. INTEREST.
a. Prior to the Maturity Date, interest shall accrue on the Principal
Amount as follows:
i. from and including the date hereof to, but not including,
February 1, 2006, at a rate per annum equal to 7.13925%; and
ii. from and including the first (1st) day of the second (2nd)
Interest Period following the date of this Mezzanine Note
(i.e. February 1, 2006), and thereafter during each Interest
Period during the term of this Mezzanine Note, at the LIBOR
Rate.
b. From and after the Maturity Date and from and after the occurrence
and during the continuance of any Event of Default, interest shall
accrue on the Principal Amount at the Default Rate.
c. Except as expressly set forth in the Mezzanine Loan Agreement to the
contrary, interest shall accrue on all amounts advanced by Mezzanine
Lender pursuant to the Loan Documents (Fourth Mezzanine) (other than
the Principal Amount, which shall accrue interest in accordance with
clauses a. and b. above) at the Default Rate.
d. Interest, for any given Interest Period, shall be computed on the
Principal Amount on the basis of a fraction, the denominator of
which shall be 360 and the numerator of which shall be the actual
number of days in the relevant Interest Period.
e. The provisions of this Section 2 are subject in all events to the
provisions of Section 2.2.4 of the Mezzanine Loan Agreement.
3. PAYMENTS.
4
a. On each Payment Date, Mezzanine Borrower shall pay to Mezzanine
Lender interest accruing hereunder for the entire Interest Period
with respect to such Payment Date.
b. All payments made by Mezzanine Borrower hereunder or under any of
the Loan Documents (Fourth Mezzanine) shall be made on or before
12:00 noon New York City time. Any payments received after such time
shall be credited to the next following Business Day.
c. All amounts advanced by Mezzanine Lender pursuant to the Loan
Documents (Fourth Mezzanine), other than the Principal Amount, or
other charges provided in the Loan Documents (Fourth Mezzanine),
shall be due and payable as provided in the Loan Documents (Fourth
Mezzanine). In the event any such advance or charge is not so repaid
by Mezzanine Borrower, Mezzanine Lender may, at its option, first
apply any payments received under this Mezzanine Note to repay such
advances, together with any interest thereon, or other charges as
provided in the Loan Documents (Fourth Mezzanine), and the balance,
if any, shall be applied in payment of any installment of interest
or principal then due and payable.
d. The entire Principal Amount of this Mezzanine Note, all unpaid
accrued interest, all interest that would accrue on the Principal
Amount through the end of the Interest Period during which the
Maturity Date occurs (even if such period extends beyond the
Maturity Date) and all other fees and sums then payable hereunder or
under the Loan Documents (Fourth Mezzanine) including, without
limitation the Prepayment Fee, if applicable (collectively, the
MATURITY DATE PAYMENT), shall be due and payable in full on the
Maturity Date.
e. Amounts due on this Mezzanine Note shall be payable, without any
counterclaim, setoff or deduction whatsoever, at the office of
Mezzanine Lender or its agent or designee at the address set forth
on the first page of this Mezzanine Note or at such other place as
Mezzanine Lender or its agent or designee may from time to time
designate in writing.
f. All amounts due under this Mezzanine Note, including, without
limitation, interest and the Principal Amount, shall be due and
payable in lawful money of the United States.
g. To the extent that Mezzanine Borrower makes a payment or Mezzanine
Lender receives any payment or proceeds for Mezzanine Borrower's
benefit, which are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a
trustee, debtor in possession, receiver, custodian or any other
party under any bankruptcy law, common law or equitable cause, then,
to such extent, the obligations of Mezzanine Borrower hereunder
intended to be satisfied shall be revived and continue as if such
payment or proceeds had not been received by Mezzanine Lender.
4. PREPAYMENTS.
5
a. Voluntary Prepayments. Borrower shall be entitled to make a
prepayment of all or a portion of the Principal Amount on any
Business Day upon satisfaction of the following conditions:
i. Mezzanine Borrower shall provide prior written notice (the
PREPAYMENT NOTICE) to Mezzanine Lender specifying the proposed
Business Day on which the prepayment is to be made, which date
shall be no earlier than thirty (30) days after the date of
such Prepayment Notice (the date of a prepayment pursuant to
this Section 4(a) and Section 4(b) below being the PREPAYMENT
DATE). Any such Prepayment Notice shall be revocable by
Mezzanine Borrower (but not more than two (2) times in any
twelve (12) month period) provided, however, if Mezzanine
Borrower elects to so revoke a Prepayment Notice, Mezzanine
Borrower shall reimburse Mezzanine Lender for the actual
out-of-pocket expenses incurred by Mezzanine Lender in
connection with such revocation; and
ii. Mezzanine Borrower shall comply with the provisions set forth
in Section 4(c) of this Mezzanine Note.
b. Mandatory Prepayments.
i. On the next occurring Payment Date following the date on which
Mezzanine Borrower actually receives any Proceeds, Mezzanine
Borrower shall prepay the outstanding principal balance of the
Mezzanine Note in an amount equal to one hundred percent
(100%) of such Proceeds together with the payment of the
Prepayment Fee; and
ii. Mezzanine Borrower shall comply with the provisions set forth
in Section 4(c) of this Mezzanine Note.
c. Payments in Connection with a Prepayment.
i. On the date on which a prepayment, voluntary or mandatory, is
made under this Mezzanine Note or as required under the
Mezzanine Loan Agreement, Mezzanine Borrower shall pay to
Mezzanine Lender all unpaid interest on the Principal Amount
prepaid, such unpaid interest calculated, (1) in the event
prepayment is made on any day other than the first day of an
Interest Period, through the end of the Interest Period during
which such prepayment occurs (in which case accrued interest
shall be calculated as if such Interest Period extends beyond
the date of such prepayment and be calculated as if the Loan
has not been prepaid on such date), and (2) in the event such
prepayment is made on the first day of an Interest Period,
through the Prepayment Date. Notwithstanding the foregoing,
provided the Loan is still owned solely by German American
Capital Corporation at the time of such prepayment, Mezzanine
Borrower shall only be required to pay Mezzanine Lender all
unpaid interest on the
6
Principal Amount prepaid, such unpaid interest calculated
through the Prepayment Date.
ii. On the Prepayment Date, Mezzanine Borrower shall pay to
Mezzanine Lender all other sums, not including scheduled
interest payments but including and not limited to, the
Prepayment Fee (provided, however, the Prepayment Fee shall
not be applicable to a release of the Claremont Property
pursuant to Section 2.3.5 of the Mezzanine Loan Agreement),
then due under the Mezzanine Note, the Mezzanine Loan
Agreement, the Pledge, and the other Loan Documents (Fourth
Mezzanine); and
iii. Mezzanine Borrower shall pay all costs and expenses of
Mezzanine Lender incurred in connection with the prepayment
(including without limitation, any costs and expenses
associated with a release of the Lien of the related Pledge as
set forth in Section 2.3.3 of the Mezzanine Loan Agreement as
well as reasonable attorneys' fees and expenses).
5. MISCELLANEOUS.
a. Waiver. Mezzanine Borrower and all endorsers, sureties and
guarantors hereby jointly and severally waive all applicable
exemption rights, valuation and appraisement, presentment for
payment, demand, notice of demand, notice of nonpayment or dishonor,
protest and notice of protest of this Mezzanine Note, and, except as
otherwise expressly provided in the Loan Documents (Fourth
Mezzanine), all other notices in connection with the delivery,
acceptance, performance, default or enforcement of the payment of
this Mezzanine Note. Mezzanine Borrower and all endorsers, sureties
and guarantors consent to any and all extensions of time, renewals,
waivers or modifications that may be granted by Mezzanine Lender
with respect to the payment or other provisions of this Mezzanine
Note and to the release of the collateral securing this Mezzanine
Note or any part thereof, with or without substitution, and agree
that additional makers, endorsers, guarantors or sureties may become
parties hereto without notice to them or affecting their liability
under this Mezzanine Note.
b. Non-Recourse. Recourse to Mezzanine Borrower or any other Person
with respect to any claims arising under or in connection with this
Mezzanine Note shall be limited to the extent provided in Section 18
of the Mezzanine Loan Agreement and the terms, covenants and
conditions of Section 18 of the Mezzanine Loan Agreement are hereby
incorporated by reference as if fully set forth in this Mezzanine
Note.
c. Mezzanine Note Secured. This Mezzanine Note and all obligations of
Mezzanine Borrower hereunder are secured by the Mezzanine Loan
Agreement, the Pledge and the other Loan Documents (Fourth
Mezzanine).
d. Notices. Any notice, election, request or demand which by any
provision of this Mezzanine Note is required or permitted to be
given or served hereunder shall be
7
given or served in the manner required for the delivery of notices
pursuant to the Mezzanine Loan Agreement.
e. Entire Agreement. This Mezzanine Note, together with the other Loan
Documents (Fourth Mezzanine), constitutes the entire and final
agreement between Mezzanine Borrower and Mezzanine Lender with
respect to the subject matter hereof and thereof and may only be
changed, amended, modified or waived by an instrument in writing
signed by Mezzanine Borrower and Mezzanine Lender.
f. No Waiver. No waiver of any term or condition of this Mezzanine
Note, whether by delay, omission or otherwise, shall be effective
unless in writing and signed by the party sought to be charged, and
then such waiver shall be effective only in the specific instance
and for the purpose for which given. No notice to, or demand on,
Mezzanine Borrower shall entitle Mezzanine Borrower to any other or
future notice or demand in the same, similar or other circumstances.
g. Successors and Assigns. This Mezzanine Note shall be binding upon
and inure to the benefit of Mezzanine Borrower and Mezzanine Lender
and their respective successors and permitted assigns. Upon any
endorsement, assignment, or other transfer of this Mezzanine Note by
Mezzanine Lender or by operation of law, the term "Mezzanine Lender"
as used herein, shall mean such endorsee, assignee, or other
transferee or successor to Mezzanine Lender then becoming the holder
of this Mezzanine Note. The term "Mezzanine Borrower" as used herein
shall include the respective successors and assigns, legal and
personal representatives, executors, administrators, devisees,
legatees and heirs of Mezzanine Borrower, if any.
h. Captions. All paragraph, section, exhibit and schedule headings and
captions herein are used for reference only and in no way limit or
describe the scope or intent of, or in any way affect, this
Mezzanine Note.
i. Severability. The provisions of this Mezzanine Note are severable,
and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part, then such invalidity or
unenforceability shall affect only such clause or provision, or part
thereof, and not any other clause or provision of this Mezzanine
Note.
j. GOVERNING LAW. THIS MEZZANINE NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
MEZZANINE BORROWER AGREES THAT, AT MEZZANINE LENDER'S OPTION, ANY
SUIT FOR THE ENFORCEMENT OF THIS MEZZANINE NOTE OR ANY OTHER
MEZZANINE LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND CONSENT TO THE
NONEXCLUSIVE JURISDICTION OF
8
SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE
UPON MEZZANINE BORROWER IN THE MANNER AND AT THE ADDRESS SPECIFIED
FOR NOTICES IN THE MEZZANINE LOAN AGREEMENT. MEZZANINE BORROWER
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS
BROUGHT IN AN INCONVENIENT COURT.
k. JURY TRIAL WAIVER. MEZZANINE BORROWER AND ALL PERSONS CLAIMING BY,
THROUGH OR UNDER IT HEREBY EXPRESSLY, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (I) ARISING UNDER THIS MEZZANINE NOTE,
INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION
THEREOF OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
THIS MEZZANINE NOTE (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO,
IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND MEZZANINE BORROWER HEREBY AGREES
AND CONSENTS THAT AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
HERETO TO THE WAIVER OF ANY RIGHT TO TRIAL BY JURY. MEZZANINE
BORROWER ACKNOWLEDGES THAT IT HAS CONSULTED WITH LEGAL COUNSEL
REGARDING THE MEANING OF THIS WAIVER AND ACKNOWLEDGES THAT THIS
WAIVER IS AN ESSENTIAL INDUCEMENT FOR THE MAKING OF THE MEZZANINE
LOAN. THIS WAIVER SHALL SURVIVE THE REPAYMENT OF THE MEZZANINE LOAN.
l. Counterclaims and other Actions. Mezzanine Borrower hereby expressly
and unconditionally waives, in connection with any suit, action or
proceeding brought by Mezzanine Lender on this Mezzanine Note, any
and every right it may have to (i) interpose any counterclaim
therein (other than a counterclaim which can only be asserted in the
suit, action or proceeding brought by Mezzanine Lender on this
Mezzanine Note and cannot be maintained in a separate action) and
(ii) have any such suit, action or proceeding consolidated with any
other or separate suit, action or proceeding.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, Mezzanine Borrower has caused this Mezzanine Note to
be executed and delivered as of the day and year first above written.
MEZZANINE BORROWER:
CNL RESORT SUB INTERMEDIATE MEZZ, LP,
a Delaware limited partnership
By: CNL Resort Sub Intermediate Mezz
GP, LLC, a Delaware limited liability
company, its sole general partner
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
Note Execution
