Prepared by and Return to: North Carolina
Xxxxxxx X. Xxxxxxxx, Xx. --------------
Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC Wake Xxxxxx
Xxxx Xxxxxx Xxx 000 Xxxxx Xxxxxx
Raleigh, North Carolina 27602 Onslow County
Watauga County
New Hanover County
Durham County
Forsyth County
STATE OF NORTH CAROLINA ) EXTENSION AGREEMENT; SECOND
MODIFICATION AGREEMENT
VARIOUS COUNTIES )
THIS EXTENSION AGREEMENT; SECOND MODIFICATION AGREEMENT (this
"Amendment"), made as of the 19th day of December, 2001, by and among WACHOVIA
BANK, N.A., a national banking association, as Agent (the "Agent") on behalf of
the banks (the "Banks") referred to in the Restated Credit Agreement
(hereinafter defined), whose address is 000 Xxxxxxxxx Xxxxxx, X.X., Xxxx Xxxxxx
Finance Group, Xxxxxxx, Xxxxxxx, 00000, Attention: Syndicated Services, XXXX
LIMITED PARTNERSHIP, a North Carolina limited partnership, whose address is c/o
Winston Hotels, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx
00000 (referred to hereinafter as the "Partnership" or the "Grantor"), WINSTON
HOTELS, INC., a North Carolina corporation (the "Corporation"), having the same
address as the Partnership, and NEW SALEM, INC., a North Carolina corporation,
Trustee (hereinafter called "Trustee").
RECITALS:
1. The Agent, the Banks, the Partnership and the Corporation
entered into that certain Syndicated Credit Agreement, dated as of January 15,
1999 (the "Original Credit Agreement") providing for a credit facility of up to
ONE HUNDRED FORTY MILLION DOLLARS ($140,000,000.00).
In connection with the Original Credit Agreement, the
Partnership and the Corporation executed those certain promissory notes in favor
of the Banks, each dated as of January 15, 1999, subject to the terms and
provisions of the Original Credit Agreement and any modification, extensions or
replacements thereof (such documents, as the same may have been heretofore
amended, being herein collectively referred to as the "Original Notes"),
evidencing an aggregate original principal indebtedness of up to ONE HUNDRED
FORTY MILLION AND NO/100 DOLLARS ($140,000,000.00). To secure the Original
Notes, the Grantor and the Corporation executed and delivered (i) those certain
Deeds of Trust, each dated of even date with the Original Notes, and recorded in
certain North Carolina counties as more particularly set forth on Exhibit A
attached hereto and incorporated herein by reference, and such Deeds of Trust
are made a part hereof by this reference as fully as if set out herein verbatim
(such documents, as same may have been heretofore amended, being herein referred
to as the "Deeds of Trust"), (ii)
those certain Assignments of Leases, Rents and Profits, each dated of even date
with the Original Notes, and recorded in certain North Carolina counties as more
particularly set forth on Exhibit B attached hereto and incorporated herein by
reference, and such Assignments of Rents are made a part hereof by this
reference as fully as if set out herein verbatim (such documents, as the same
may have been heretofore amended, being herein referred to as the "Assignments
of Rents"), and (iii) various other loan documents executed by the Grantor and
the Corporation with respect to the properties encumbered by the Deeds of Trust
(collectively, the "Other Loan Documents").
2. The Agent, the Banks, the Partnership and the Corporation have
previously entered into that certain Amended and Restated Syndicated Credit
Agreement, dated as of April 1, 2000 (the "Restated Credit Agreement"), pursuant
to which certain modifications were made to the Original Credit Agreement.
In connection with the Restated Credit Agreement, the
Partnership, the Corporation, the Agent and the Trustee executed that certain
Amendment to Deeds of Trust, to Assignments of Rents and to Other Loan
Documents, dated as of April 1, 2000, and recorded in the County Registries in
the Books and Pages described in Exhibit C attached hereto and incorporated
herein by reference (the "First Amendment").
3. Simultaneously herewith at the request of the Grantor and the
Corporation, the Banks and the Agent are amending and restating the Restated
Credit Agreement by that certain Second Amended and Restated Syndicated Credit
Agreement, dated as of December 19, 2001, executed by the Partnership, the
Corporation, the banks being parties thereto, and the Agent (such Second Amended
and Restated Syndicated Credit Agreement, together with any amendments,
modifications, renewals, replacements and extensions thereof, is hereinafter
referred to as the "Credit Agreement"). The Credit Agreement, as amended and
restated, (i) extends the maturity date of the credit facility evidenced by the
Original Notes for three additional years from the date hereof; (ii) decreases
the amount available under the credit facility to $125,000,000.00; and (iii)
makes certain other modifications described therein.
4. In connection with the execution of the Credit Agreement, the
Partnership and the Corporation have executed those certain amended and restated
promissory notes, each made a part hereof by this reference as fully as if set
out herein verbatim (such documents, as the same may have been heretofore
amended, being herein collectively referred to as the "Notes") evidencing an
aggregate original principal indebtedness of up to ONE HUNDRED TWENTY-FIVE
MILLION AND NO/100 DOLLARS ($125,000,000.00), the amount of the reduced amended
and restated credit facility.
5. The Agent, as beneficiary under the Deeds of Trust and as
assignee under the Assignments of Rents, and the Other Loan Documents, the
Grantor and the Corporation mutually desire to modify and amend the provisions
of the Deeds of Trust, Assignments of Rents and the Other Loan Documents in the
manner hereinafter set out, it being specifically understood that except as
herein modified and amended, the terms and provisions of the Deeds of Trust, the
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Assignments of Rents and the Other Loan Documents shall remain unchanged and
continue in full force and effect as therein written.
AGREEMENT:
NOW, THEREFORE, the Agent, the Trustee, the Grantor and the
Corporation, in consideration of the premises and the sum of One Dollar ($1.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by each, do hereby acknowledge that the Grantor has
given, granted, bargained, sold and conveyed, and by these presents does hereby
give, grant, bargain, sell and convey unto the Trustee, and the Trustee's heirs,
successors and assigns, the property encumbered by the Deeds of Trust (the
"Premises," as such term is defined in the Deeds of Trust).
TO HAVE AND TO HOLD the Premises unto the Trustee and the Trustee's
heirs, successors and assigns, in fee simple forever, upon the trusts and for
the uses and purposes set forth in the Deeds of Trust, as hereby modified and
amended.
Each of the Agent, the Trustee, the Grantor and the Corporation does
hereby agree that the Deeds of Trust, the Assignments of Rents and the Other
Loan Documents should be and the same hereby are modified and amended as
follows:
1. References to Credit Agreement and Notes in the Loan
Documents. (a) Each reference to the "Credit Agreement" or any
similar term in each Deed of Trust, each Assignment of Rents
and each of the Other Loan Documents shall be deemed to be,
and is hereby amended to be, a reference to that certain
Second Amended and Restated Syndicated Credit Agreement, dated
as of December 19, 2001, by and among Winston Hotels, Inc.,
XXXX Limited Partnership, Wachovia Bank, N.A., as agent and
the banks referred to therein and being parties thereto, and
any and all amendments, modifications, renewals, replacements
and extensions thereof.
(b) Each reference to the "Notes" or any similar term in each
Deed of Trust, each Assignment of Rents and each of the Other
Loan Documents shall be deemed to be, and hereby is amended to
be, a reference to the Amended and Restated Promissory Notes,
dated as of December 19, 2001, executed by Winston Hotels,
Inc. and XXXX Limited Partnership in favor of any one or more
of the Banks and any and all amendments, modifications,
renewals, replacements and extensions thereof.
2. Amendments to Deeds of Trust Sections regarding Obligations
Secured.
(a) The following paragraph inserted by the First Amendment is
deleted from the Deeds of Trust:
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This Deed of Trust is given to secure all present and future
obligations of Borrower to the Banks and to the Beneficiary
which may be incurred from time to time pursuant to the terms
of the Credit Agreement, including but not limited to the
obligations evidenced by the Notes, and also to secure any
future obligations of the Borrower to the Banks and the
Beneficiary under any Master Agreement and also to secure any
present or future obligations of the Borrower for Facility
Letters of Credit under the Letter of Credit Documents and the
Credit Agreement. As provided in the Credit Agreement, the
Borrower may pay such future obligations and then reborrow
from time to time under the line of credit thereby established
up to the Facility Limit (as hereinabove defined), in
accordance with the provisions of the Credit Agreement. The
period in which future obligations may be incurred and secured
by this Deed of Trust is the period between the date hereof
and that date which is the earlier of (i) the stated maturity
date of the Notes, subject to extensions from time to time as
provided in the Credit Agreement, or (ii) fifteen (15) years
from the date hereof. The amount of present obligations
secured by this Deed of Trust is One Hundred Three Million
Eight Hundred Thousand and No/100 Dollars ($103,800,000.00),
and the maximum principal amount, including present and future
obligations, which may be secured by this Deed of Trust at any
one time is the sum of (a) One Hundred Forty Million and
No/100 Dollars ($140,000,000.00) plus (b) the obligations of
the Borrower under any Master Agreement, the amount of which
cannot be determined at the present time but which, for
purposes of this Deed of Trust, shall not exceed Two Hundred
Eighty Million and No/100 Dollars ($280,000,000.00). Any
additional amounts advanced by the Banks or the Beneficiary
pursuant to the provisions of this Deed of Trust shall be
deemed necessary expenditures for the protection of the
security. Neither Borrower nor Grantor need sign any
instrument or notation evidencing or stipulating that future
advances are secured by this Deed of Trust.
(b) In lieu thereof, the following paragraph is substituted:
This Deed of Trust is given to secure all present and future
obligations of Borrower to the Banks and to the Beneficiary
which may be incurred from time to time pursuant to the terms
of the Credit Agreement, including but not limited to the
obligations evidenced by the Notes, and also to secure any
future obligations of the Borrower to the Banks and the
Beneficiary under any Master Agreement and also to secure any
present or future obligations of the Borrower for Facility
Letters of Credit under the Letter of Credit Documents and the
Credit Agreement. As provided in the Credit Agreement, the
Borrower may pay such future obligations and then reborrow
from time to time under the line of credit thereby established
up to the Facility Limit (as hereinabove defined), in
accordance with the provisions of the Credit Agreement. The
period in which future obligations may be incurred and secured
by this Deed of Trust is the period between the date hereof
and that date which is the earlier of (i) the stated maturity
date of the Notes, subject to extensions from time to time as
provided in the Credit Agreement, or
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(ii) fifteen (15) years from the date hereof. The amount of
present obligations secured by this Deed of Trust as of
December 27, 2001, is One Hundred One Million Seven Hundred
Thousand and No/100 Dollars ($101,700,000.00), and the maximum
principal amount, including present and future obligations,
which may be secured by this Deed of Trust at any one time is
the sum of (a) One Hundred Twenty-Five Million and No/100
Dollars ($125,000,000.00) plus (b) the obligations of the
Borrower under any Master Agreement, the amount of which
cannot be determined at the present time but which, for
purposes of this Deed of Trust, shall not exceed Two Hundred
Fifty Million and No/100 Dollars ($250,000,000.00). Any
additional amounts advanced by the Banks or the Beneficiary
pursuant to the provisions of this Deed of Trust shall be
deemed necessary expenditures for the protection of the
security. Neither Borrower nor Grantor need sign any
instrument or notation evidencing or stipulating that future
advances are secured by this Deed of Trust.
3. Miscellaneous. IT IS MUTUALLY AGREED by and between the
parties hereto that this Amendment shall become a part of the Deeds of Trust,
the Assignments of Rents and the Other Loan Documents by reference and that
nothing herein contained shall impair the security now held for said
indebtedness, nor shall waive, annul, vary or affect any provision, condition,
covenant or agreement contained in the Credit Agreement, the Deeds of Trust, the
Assignments of Rents and the Other Loan Documents, except as herein amended, nor
affect or impair any rights, powers or remedies under the Credit Agreement, the
Notes, Deeds of Trust, the Assignments of Rents and the Other Loan Documents as
hereby amended.
The execution and delivery hereof shall not constitute a novation or
modification of the lien, encumbrance or security title of the Deeds of Trust,
which Deeds of Trust shall retain their priority as originally filed for record.
Grantor and Corporation expressly agree that the Notes are in full force and
effect and that Grantor and Corporation have no right to setoff, counterclaim or
defense to the payment thereof.
Any reference to the Deeds of Trust, the Assignments of Rents or the
Other Loan Documents contained in any of the documents executed in connection
with the Notes, the Credit Agreement or the Deeds of Trust shall hereinafter be
deemed to be a reference to such documents amended hereby. In amplification
thereof, the Deeds of Trust and the Assignments of Rents, as amended hereby,
shall secure the Notes, the Credit Agreement, and the Letter of Credit
Documents, and any further modifications, renewals or extensions thereof or
replacements thereof.
The Trustee joins in the execution of this Amendment as evidence of its
knowledge of the provisions hereof and its consent to the modifications herein
made.
This Amendment shall be binding upon and inure to the benefit of any
assignee or the respective heirs, executors, administrators, successors and
assigns of the parties hereto.
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This Amendment may be executed in any number of counterparts, each of
which shall be an original but all of which taken together shall constitute one
and the same instrument, and any of the parties hereto may execute any of such
counterparts.
This Amendment shall be governed by and construed in accordance with
the laws of the State of North Carolina without regard to principles of conflict
of laws.
IN WITNESS WHEREOF, this instrument has been executed by the
parties hereto and delivered on the date and year first above written.
WINSTON HOTELS, INC., a North Carolina
corporation
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Vice President
XXXX LIMITED PARTNERSHIP, a North Carolina
limited partnership
By: WINSTON HOTELS, INC., a North Carolina
corporation, its general partner
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Vice President
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WACHOVIA BANK, N.A., as Agent
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Title: Senior Vice President
NEW SALEM, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Title: Vice President
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NORTH CAROLINA
WAKE COUNTY
I, Xxxxxx X. Xxxxx, a Notary Public, certify that Xxxxx Xxxx
personally came before me this day and acknowledged that he is Vice President of
Winston Hotels, Inc., a North Carolina corporation (the "Corporation"), and that
he, as Vice President, being authorized to do so, executed the foregoing on
behalf of the Corporation and on behalf of XXXX Limited Partnership, a North
Carolina limited partnership in which the Corporation is a general partner.
Witness my hand and official seal, this the 19th day of December, 2001.
/s/ Xxxxxx X. Xxxxx
--------------------------------
(Signature of notary public)
(Notary Seal)
My commission expires: April 8, 2002
-------------------------------
NORTH CAROLINA
WAKE COUNTY
I, Xxxxxx X. Xxxxx, a Notary Public, certify that Xxxxx Xxxx
personally came before me this day and acknowledged that he is Vice President of
Winston Hotels, Inc., a North Carolina corporation, and that he, as Vice
President, being authorized to do so, executed the foregoing on behalf of the
corporation.
Witness my hand and official seal, this the 19th day of December, 2001.
/s/ Xxxxxx X. Xxxxx
--------------------------------
(Signature of notary public)
(Notary Seal)
My commission expires: April 8, 2002
----------------------
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NORTH CAROLINA
WAKE COUNTY
I, Xxx Xxxxx, a Notary Public, certify that Xxxxx X. Xxxx personally
came before me this day and acknowledged that he/she is Senior Vice President of
Wachovia Bank, N.A., and that he/she, as Senior Vice President, being authorized
to do so, executed the foregoing on behalf of Wachovia Bank, N.A.
Witness my hand and official seal, this the 26th day of December, 2001.
/s/ Xxx Xxxxx
--------------------------------
(Signature of notary public)
(Notary Seal)
My commission expires: November 19, 2006
------------------------------
NORTH CAROLINA
WAKE COUNTY
I, Xxx Xxxxx, a Notary Public, certify that Xxxxx X. Xxxx personally
came before me this day and acknowledged that he/she is Vice President of New
Salem, Inc., a North Carolina corporation, and that he/she, as Vice President,
being authorized to do so, executed the foregoing on behalf of the corporation.
Witness my hand and official seal, this the 26th day of December, 2001.
/s/ Xxx Xxxxx
--------------------------------
(Signature of notary public)
(Notary Seal)
My commission expires: November 19, 2006
------------------------
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EXHIBIT A
Deeds of Trust
1. That certain Deed of Trust, Assignment of Rents, Security Agreement and
Financing Statement recorded in Book 8235, Page 1465, Wake County
Registry.
2. That certain Deed of Trust, Assignment of Rents, Security Agreement and
Financing Statement recorded in Book 1466, Page 279, Xxxxx County
Registry.
3. That certain Deed of Trust, Assignment of Rents, Security Agreement and
Financing Statement recorded in Book 1517, Page 739, Onslow County
Registry.
4. That certain Deed of Trust, Assignment of Rents, Security Agreement and
Financing Statement recorded in Book 494, Page 117, Watauga County
Registry.
5. That certain Deed of Trust, Assignment of Rents, Security Agreement and
Financing Statement recorded in Book 2506, Page 573, New Hanover County
Registry.
6. That certain Deed of Trust, Assignment of Rents, Security Agreement and
Financing Statement recorded in Book 2589, Page 392, Durham County
Registry.
7. That certain Deed of Trust, Assignment of Rents, Security Agreement and
Financing Statement recorded in Book 2047, Page 1322, Forsyth County
Registry.
EXHIBIT B
Assignments Of Leases
1. That certain Assignment of Leases, Rents and Profits recorded in Book
8235, Page 1501, Wake County Registry.
2. That certain Assignment of Leases, Rents and Profits recorded in Book
1466, Page 315, Xxxxx County Registry.
3. That certain Assignment of Leases, Rents and Profits recorded in Book
1517, Page 775, Onslow County Registry.
4. That certain Assignment of Leases, Rents and Profits recorded in Book
494, Page 153, Watauga County Registry.
5. That certain Assignment of Leases, Rents and Profits recorded in Book
2506, Page 609, New Hannover County Registry.
6. That certain Assignment of Leases, Rents and Profits recorded in Book
2589, Page 428, Durham County Registry.
7. That certain Assignment of Leases, Rents and Profits recorded in Book
2047, Page 1358, Forsyth County Registry.
EXHIBIT C
Amendments to Deeds of Trust, Assignments of Rent,
and to Other Loan Documents
1. That certain Amendment to Deeds of Trust, Assignment of Rents and to
Other Loan Documents recorded in Book 8587, Page 312, Wake County
Registry.
2. That certain Amendment to Deeds of Trust, Assignment of Rents and to
Other Loan Documents recorded in Book 1622, Page 272, Xxxxx County
Registry.
3. That certain Amendment to Deeds of Trust, Assignment of Rents and to
Other Loan Documents recorded in Book 1627, Page 716, Onslow County
Registry.
4. That certain Amendment to Deeds of Trust, Assignment of Rents and to
Other Loan Documents recorded in Book 568, Page 476, Watauga County
Registry.
5. That certain Amendment to Deeds of Trust, Assignment of Rents and to
Other Loan Documents recorded in Book 2749, Page 122, New Hanover
County Registry.
6. That certain Amendment to Deeds of Trust, Assignment of Rents and to
Other Loan Documents recorded in Book 2917, Page 604, Durham County
Registry.
7. That certain Amendment to Deeds of Trust, Assignment of Rents and to
Other Loan Documents recorded in Book 2117, Page 550, Forsyth County
Registry.
