Exhibit 10.90
This Renewal, Amended, Restated and Consolidated Note (the "Note") renews,
amends, restates and consolidates the outstanding principal balance under (i)
the Existing Notes (as defined herein) and (ii) the New Loan (as defined
herein), and is secured by a Multi-State Amended, Restated and Consolidated Fee
and Leasehold Mortgage, Deed of Trust, Security Agreement, Financing Statement,
Fixture Filing, and Assignment of Leases, Rents, Hotel Revenue and Security
Deposits of even date herewith (the "Security Instrument") given by the Borrower
herein to the Lender herein and encumbering real property located in the States
of Florida (the "Florida Property"), Arizona (the "Arizona Property"),
California (the "California Property") and Hawaii (the "Hawaii Property"), which
Security Instrument amends, restates and consolidates certain mortgages and
deeds of trusts (collectively, the "Prior Security Instrument") previously given
by the Borrower herein to and in favor of the Lender herein for purposes of
securing the Existing Notes. The Existing Notes and this Note have been made,
executed and delivered outside the State of Florida. Proper Florida Documentary
Stamp Tax in the amount of $462,000 was paid on the Existing Notes at the time
the Prior Security Instrument was recorded among the Public Records of
Miami-Dade County, Florida, based upon a maximum recovery against the Florida
Property of $132,000,000. The Security Instrument does not limit maximum
recovery against the collateral located in Florida and encumbered by the
Security Instrument. This Note represents a renewal of the outstanding balance
under the Existing Notes in the amount of $900,000,000 (the "Existing Notes
Balance") plus the additional indebtedness due under the New Loan in the amount
of $100,000,000 (the "Additional Indebtedness") (the Existing Notes Balance and
Additional Indebtedness being together referred to as the "Note Indebtedness").
The value of the Florida Property, Arizona Property, California Property and
Hawaii Property (collectively, the "Overall Property") encumbered by the
Security Instrument is $2,166,600,000. The value of the Florida Property
encumbered by the Security Instrument is $220,700,000. Accordingly, the ratio of
the value of the Florida Property to the Overall Property stated as a percentage
is 10.19% (the "Tax Ratio"). The Tax Ratio, multiplied by the Note Indebtedness
results in a tax base of $101,900,000 (the "Note Tax Base") for the Note
Indebtedness, which results in documentary stamp taxes due in the amount of
$356,650. As stated above, Florida documentary stamp tax in the amount of
$462,000 was paid at the time the Prior Security Instrument was recorded among
the Public Records of Miami-Dade County, Florida. Accordingly, pursuant to Rule
12B-4.053(31)(b), Florida Administrative Code, no additional Florida documentary
stamp tax are due in connection with the execution and delivery of this Note and
the recordation of the Security Instrument in Miami-Dade County, Florida.
Pursuant to Rule 12C-2.004(2)(b), Florida Administrative Code, Florida
non-recurring intangible tax in the amount of $264,000 was paid upon recordation
of the Prior Security Instrument among the Public Records of Miami-Dade County,
Florida, based upon a maximum recovery against the Florida Property of
$132,000,000. Non-recurring intangible tax on the Note Tax Base is $203,800.
Accordingly, pursuant to Rule 12C-2.004(2)(b), Florida Administrative Code, no
additional Florida non-recurring intangible tax is due in connection with the
execution and delivery of this Note and the recordation of the Security
Instrument in Miami-Dade County, Florida.
RENEWAL, AMENDED, RESTATED AND CONSOLIDATED NOTE
New York, New York
$1,000,000,000 January 9, 2006
RENEWAL, AMENDED, RESTATED AND CONSOLIDATED NOTE, dated as of January 9,
2006 (this NOTE), by 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, each a Delaware limited partnership (each, if
individually, and all if collectively, as the context requires, BORROWER) each
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, LENDER), having
an office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, Lender is the present owner and holder of those certain
promissory notes described on Exhibit A attached hereto and incorporated herein
(collectively, the EXISTING NOTES), which Existing Notes evidence an
indebtedness of Borrower to Lender in the current outstanding principal amount
of $900,000,000 (the EXISTING DEBT);
WHEREAS, on the date hereof and pursuant to the terms of this Note and the
Loan Agreement (as defined below), Lender has agreed to make a loan (the LOAN)
to Borrower in the maximum principal amount of $1,000,000,000, such Loan to be
comprised of (i) the Existing Debt, and (ii) an additional loan in an aggregate
principal amount of $100,000,000 (the NEW LOAN), so that the combined
outstanding principal balance of New Loan and the Existing Debt on the date
hereof is $1,000,000,000;
WHEREAS, in connection with the foregoing, Borrower and Lender have agreed
in the manner hereinafter set forth to (i) renew, combine and consolidate the
Existing Notes and the indebtedness evidenced thereby with the New Loan and (ii)
amend, modify and restate in their entirety the terms and provisions of the
Existing Notes on the terms and conditions hereinafter set forth; and
WHEREAS, Lender and Borrower intend these Recitals to be a material part
of this Note.
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender agree as follows:
I. The Existing Debt is renewed, combined and consolidated together with
the New Loan so that together they shall constitute in law but one indebtedness
in the maximum principal amount of $1,000,000,000 (such amount, or so much
thereof as may be outstanding from time to time under this Note, the PRINCIPAL
AMOUNT), together with interest thereon as hereinafter provided. The terms,
covenants, conditions and provisions of the Existing Notes are hereby modified,
amended and restated in their entirety so that henceforth the terms, covenants,
conditions and provisions of the Existing Notes shall read and be as set forth
in this Note and Borrower agrees to comply with and be subject to all of the
terms, covenants and conditions of this Note.
II. The parties hereto certify that this Note evidences the Existing Debt
evidenced by the Existing Notes, as increased by the New Loan, and evidences no
further or other principal indebtedness. Neither this Note nor anything
contained herein shall be construed as a novation of Borrower's indebtedness to
Lender evidenced by the Existing Notes or of the Existing Notes, which shall
remain in full force and effect as hereby confirmed, modified, restated and
amended.
III. This Note is an extension and continuation of the Existing Debt
evidenced by the Existing Notes, as increased by the New Loan, and, as to the
Existing Debt, is issued in replacement of and substitution for the Existing
Notes.
IV. The Existing Notes, as modified and restated in their entirety
pursuant to this Note, and the obligations of Borrower thereunder, as increased
by the New Loan, is
2
hereby ratified and confirmed, and shall remain in full force and effect until
the full performance and satisfaction of all obligations of Borrower under this
Note.
NOW, THEREFORE, FOR VALUE RECEIVED, Borrower promises to pay to the order
of Lender the Principal Amount, together with interest from the date hereof and
other fees, expenses and charges as provided in this Note.
1. DEFINED TERMS.
a. Capitalized terms used but not otherwise defined herein shall have
the respective meanings given thereto in the Loan Agreement (as
defined below), unless otherwise expressly provided herein. All
references to sections shall be deemed to be references to sections
of this Note, unless otherwise indicated.
b. The following terms shall have the meanings ascribed thereto:
APPLICABLE RATE shall mean a rate equal to 5.5699%.
BORROWER shall have the meaning provided in the first paragraph hereof.
CLAREMONT ALLOCATED LOAN AMOUNT shall mean $32,786,885.25.
CLAREMONT PROPERTY shall have the meaning set forth in the Loan Agreement.
CODE shall mean the Internal Revenue Code of 1986, as amended, as it may
be further amended from time to time, and any successor statutes thereto,
and applicable U.S. Department of Treasury regulations issued pursuant
thereto in temporary or final form.
DEFAULT RATE shall mean, with respect to an acceleration of the Loan, a
rate per annum equal to the lesser of (a) the Maximum Legal Rate and (b)
three percent (3%) above the Applicable Rate, adjusted from time to time
as set forth herein.
DEFEASANCE COLLATERAL shall have the meaning set forth in the Loan
Agreement.
DEFEASANCE EVENT shall have the meaning set forth in the Loan Agreement.
DEFEASANCE LOCKOUT PERIOD shall mean the period commencing on the date
hereof and expiring on the earlier date to occur of (a) two years after
(i) the "startup day," within the meaning of Section 860G(a)(9) of the
Code, of a "real estate mortgage investment conduit," (REMIC) within the
meaning of Section 860D of the Code, that holds this Note and the Security
Instrument or (ii) if this Note is severed and such severed portions are
included in REMICs that do not
3
have the same "startup day," the "startup day" of the REMIC in which the
last of such severed portions is included, or (b) thirty (30) months after
the first day of the calendar month immediately following the calendar
month in which the funding of this Note occurs, whichever shall first
occur.
DEFEASANCE PREMIUM shall mean the amount (if any) which, when added to the
remaining Principal Amount of this Note that has not been subject to a
prior Defeasance Event, will be sufficient to purchase Defeasance
Collateral providing the required Scheduled Defeasance Payments allocated
to this Note.
EXISTING DEBT shall have the meaning set forth in the Recitals.
EXISTING NOTES shall have the meaning provided in the Recitals.
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 and end on January 31, 2006.
LENDER shall have the meaning provided in the first paragraph hereof.
LIQUIDATED DAMAGES AMOUNT shall have the meaning set forth in Section
4(f).
LOAN AGREEMENT shall mean the Loan and Security Agreement, dated the date
hereof, between Borrower and Lender.
MATURITY DATE shall mean February 1, 2011, or such earlier date on which
the final payment of principal of this Note becomes due and payable as
provided in the Loan Agreement or this Note, whether at such stated
maturity date, by declaration of acceleration, or otherwise.
MATURITY DATE PAYMENT shall have the meaning set forth in Section 3(d).
NOTE shall have the meaning provided in the first paragraph hereof.
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. Interest due for the first Interest Period
shall be paid at the closing of the Loan.
PREPAYMENT LOCKOUT PERIOD shall mean the period from the date hereof to
(but not including) the Prepayment Lockout Release Date, during which time
no prepayment of the Loan shall be permitted.
4
PREPAYMENT LOCKOUT RELEASE DATE shall mean November 1, 2010.
PREPAYMENT NOTICE shall have the meaning provided in Section 4(a)(i).
PRINCIPAL AMOUNT shall have the meaning provided in the Recitals.
SCHEDULED DEFEASANCE PAYMENTS shall have the meaning set forth in the Loan
Agreement.
YIELD MAINTENANCE PREMIUM shall mean an amount equal to the greater of (i)
one percent (1%) of the Claremont Allocated Loan Amount, and (ii) the
present value as of the date of the release of the Claremont Property (the
TENDER DATE) of the remaining scheduled payments due on the Claremont
Allocated Loan Amount from the Tender Date through the Maturity Date
(including any balloon payment) determined by discounting such payments at
the Discount Rate (hereinafter defined), less the Claremont Allocated Loan
Amount. DISCOUNT RATE shall mean the rate which, when compounded monthly,
is equivalent to the Treasury Rate (hereinafter defined) when compounded
semi-annually. TREASURY RATE shall mean the yield calculated by the linear
interpolation of the yields, as reported in Federal Reserve Statistical
Release H.15-Selected Interest Rates under the heading U.S. Government
Securities/Treasury Constant Maturities for the week ending prior to the
Tender Date, of U.S. Treasury constant maturities with maturity dates (one
longer and one shorter most nearly approximating the period ending on the
Maturity Date. (In the event Release H.15 is no longer published, Lender
shall select a comparable publication to determine the Treasury Rate).
Lender shall notify Borrower of the amount and the basis of determination
of the required Yield Maintenance Premium.
2. INTEREST.
a. Prior to the Maturity Date, interest shall accrue on the Principal
Amount at a rate per annum equal to the Applicable 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 Loan Agreement to the contrary,
interest shall accrue on all amounts advanced by Lender pursuant to
the Loan Documents (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
5
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 Loan Agreement.
3. PAYMENTS.
a. Borrower shall pay to Lender on each Payment Date, interest accruing
in arrears for the entire Interest Period with respect to such
Payment Date, plus any past due interest accruing at the Default
Rate following the occurrence and during the continuance of an Event
of Default with respect to the applicable Interest Period.
b. All payments made by Borrower hereunder or under any of the Loan
Documents 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 Lender pursuant to the Loan Documents, other
than the Principal Amount, or other charges provided in the Loan
Documents, shall be due and payable as provided in the Loan
Documents. In the event any such advance or charge is not so repaid
by Borrower, Lender may, at its option, first apply any payments
received under this Note to repay such advances, together with any
interest thereon, or other charges as provided in the Loan
Documents, 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 Note, all unpaid accrued
interest, and all other fees and sums then payable hereunder or
under the Loan Documents (collectively, the MATURITY DATE PAYMENT),
shall be due and payable in full on the Maturity Date.
e. Amounts due on this Note shall be payable, without any counterclaim,
setoff or deduction whatsoever, at the office of Lender or its agent
or designee at the address set forth on the first page of this Note
or at such other place as Lender or its agent or designee may from
time to time designate in writing.
f. All amounts due under this Note, including, without limitation,
interest and the Principal Amount, shall be due and payable in
lawful money of the United States.
6
g. To the extent that Borrower makes a payment or Lender receives any
payment or proceeds for 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 Borrower
hereunder intended to be satisfied shall be revived and continue as
if such payment or proceeds had not been received by Lender.
4. PREPAYMENTS. Except as permitted herein, the outstanding Principal Amount
may not be prepaid in whole or in part prior to the Maturity Date.
a. VOLUNTARY PREPAYMENTS. Borrower shall be entitled to make a
prepayment of all or a portion of the Principal Amount on any
Business Day occurring on or after the Prepayment Lockout Release
Date, upon satisfaction of the following conditions:
i. Borrower shall provide prior written notice (the PREPAYMENT
NOTICE) to 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) being the Prepayment Date). Any such Prepayment
Notice shall be revocable by Borrower (but not more than two
(2) times in any twelve (12) month period) provided, however,
if Borrower elects to so revoke a Prepayment Notice, Borrower
shall reimburse Lender for the actual out-of-pocket expenses
incurred by Lender in connection with such revocation;
ii. Borrower shall comply with the provisions set forth in Section
4(c) of this Note;
b. DEFEASANCE. (i) At any time prior to the Prepayment Lockout Release
Date with respect to the Claremont Property, and (ii) from and after
expiration of the Defeasance Lockout Period and prior to the
Prepayment Lockout Release Date with respect to any Property other
than the Claremont Property, Borrower shall have the right to
defease the Loan pursuant to the provisions of Section 2.3.4 of the
Loan Agreement. In no event shall a prepayment of this Note in
accordance with Section 4(a) or 4(c) constitute a Defeasance Event
or trigger or result in any defeasance liability or the obligation
of Borrower to meet any defeasance requirements under this Note or
the other Loan Documents.
7
c. MANDATORY PREPAYMENTS. On the next occurring Payment Date following
the date on which Borrower actually receives any Proceeds, if Lender
is not obligated and does not elect to make such Proceeds available
to Borrower for the restoration of the Property, (1) Borrower shall
prepay the outstanding principal balance of the Note in an amount
equal to one hundred percent (100%) of such Proceeds and (2)
Borrower shall comply with the provisions set forth in Section 4(d).
d. PAYMENTS IN CONNECTION WITH A PREPAYMENT.
i. On the date on which a prepayment, voluntary or mandatory, is
made under this Note or as required under the Loan Agreement,
which date must be a Business Day, Borrower shall pay to
Lender the entire portion of the Principal Amount so prepaid
together with all unpaid interest on the portion of the
Principal Amount prepaid, such unpaid interest calculated
(even if such period extends beyond the date of prepayment)
through the end of the Interest Period during which such
prepayment is made (unless such prepayment is made on a
Payment Date, in such event interest shall be calculated
through such Payment Date).
ii. In the event that any partial prepayment of principal occurs
before the Maturity Date, any Principal Amount prepaid
pursuant to this Section 4 may not be reborrowed hereunder.
iii. On the Prepayment Date, Borrower shall pay to Lender all other
sums, excluding scheduled interest payments, then due and
payable under the Note, the Loan Agreement, the Security
Instrument, and the other Loan Documents.
e. PAYMENT IN CONNECTION WITH RELEASE OF CLAREMONT PROPERTY. On any
Business Day from and after the date hereof, Borrower shall have the
right to prepay the Loan pursuant to the provisions of Section 2.3.6
of the Loan Agreement in connection with a release of the Claremont
Property, subject to the payment of the Yield Maintenance Premium
and satisfaction of the conditions set forth in Section 4(a) and
4(d) above. Borrower's prepayment under this Section 4(e) in
connection with a release of the Claremont Property shall not
constitute a Defeasance Event or trigger or result in any defeasance
liability or the obligation of Borrower to meet any defeasance
requirements under this Note or the other Loan Documents.
f. LIQUIDATED DAMAGES AMOUNT. IF FOLLOWING THE ACCELERATION OF THE NOTE
BY LENDER AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT, ALL OR ANY
PART
8
OF THE LOAN IS REPAID DURING THE PREPAYMENT LOCKOUT PERIOD FOR ANY
REASON EXCLUDING A MANDATORY PREPAYMENT IN CONNECTION WITH THE
APPLICATION OF PROCEEDS FOLLOWING A CASUALTY OR CONDEMNATION, THEN
BORROWER SHALL PAY TO LENDER, AS LIQUIDATED DAMAGES AND NOT AS A
PENALTY, AND IN ADDITION TO ANY AND ALL OTHER SUMS AND FEES PAYABLE
UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS, AN AMOUNT EQUAL TO THE
GREATER OF (A) THREE PERCENT (3%) OF THE PRINCIPAL AMOUNT BEING
REPAID AND (B) THE DEFEASANCE PREMIUM (THE LIQUIDATED DAMAGES
AMOUNT).
5. MISCELLANEOUS.
a. WAIVER. 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 Note, and, except as otherwise expressly provided in
the Loan Documents, all other notices in connection with the
delivery, acceptance, performance, default or enforcement of the
payment of this Note. Borrower and all endorsers, sureties and
guarantors consent to any and all extensions of time, renewals,
waivers or modifications that may be granted by Lender with respect
to the payment or other provisions of this Note and to the release
of the collateral securing this 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 Note.
b. NON-RECOURSE. Recourse to the Borrower or any other Person with
respect to any claims arising under or in connection with this Note
shall be limited to the extent provided in Section 18 of the Loan
Agreement and the terms, covenants and conditions of Section 18 of
the Loan Agreement are hereby incorporated by reference as if fully
set forth in this Note.
c. NOTE SECURED. This Note and all obligations of Borrower hereunder
are secured by the Loan Agreement, the Security Instrument and the
other Loan Documents.
d. NOTICES. Any notice, election, request or demand which by any
provision of this Note is required or permitted to be given or
served hereunder shall be given or served in the manner required for
the delivery of notices pursuant to the Loan Agreement.
9
e. ENTIRE AGREEMENT. This Note, together with the other Loan Documents,
constitutes the entire and final agreement between Borrower and
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 Borrower and Lender.
f. NO WAIVER. No waiver of any term or condition of this 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, Borrower shall
entitle Borrower to any other or future notice or demand in the
same, similar or other circumstances.
g. SUCCESSORS AND ASSIGNS. This Note shall be binding upon and inure to
the benefit of Borrower and Lender and their respective successors
and permitted assigns. Upon any endorsement, assignment, or other
transfer of this Note by Lender or by operation of law, the term
"Lender" as used herein, shall mean such endorsee, assignee, or
other transferee or successor to Lender then becoming the holder of
this Note. The term "Borrower" as used herein shall include the
respective successors and assigns, legal and personal
representatives, executors, administrators, devisees, legatees and
heirs of 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 Note.
i. SEVERABILITY. The provisions of this 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 Note.
j. GOVERNING LAW. THIS 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. BORROWER
AGREES THAT, AT LENDER'S OPTION, ANY SUIT FOR THE ENFORCEMENT OF
THIS NOTE OR ANY OTHER 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 SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON BORROWER IN THE
MANNER AND AT
10
THE ADDRESS SPECIFIED FOR NOTICES IN THE LOAN AGREEMENT. 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. 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 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 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 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. 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
LOAN. THIS WAIVER SHALL SURVIVE THE REPAYMENT OF THE LOAN.
l. COUNTERCLAIMS AND OTHER ACTIONS. Borrower hereby expressly and
unconditionally waives, in connection with any suit, action or
proceeding brought by Lender on this 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 Lender on this 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.
m. JOINT AND SEVERAL LIABILITY. The obligations of the Borrower
hereunder and under the Loan Agreement and the other Loan Documents
shall be
11
and are the joint and several obligations of each Borrower
irrespective of whether the proceeds of the Loan may be used with
respect to a particular Property owned by a particular Borrower;
provided, however, that to the extent that the "Borrower" hereunder
is entitled to exercise rights or deliver notices, such rights and
deliveries may be made by any Borrower and the Lender shall be
entitled to rely on the authority of any such party without further
notice or acknowledgment from the other.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, Borrower has caused this Note to be executed and
delivered as of the day and year first above written.
BORROWER:
CNL RESORT HOTEL, LP,
a Delaware limited partnership,
By: CNL RESORT SPE GP, LLC,
a Delaware limited liability company,
as sole general partner
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
CNL RESORT SILVER PROPERTIES, LP,
a Delaware limited partnership,
By: CNL RESORT SPE GP, LLC,
a Delaware limited liability company,
as sole general partner
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
CNL GRAND WAILEA RESORT, LP,
a Delaware limited partnership,
By: CNL RESORT SPE GP, LLC,
a Delaware limited liability company,
as sole general partner
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
13
CNL CLAREMONT RESORT, LP,
a Delaware limited partnership
By: CNL RESORT SPE GP, LLC
a Delaware limited liability company,
as sole general partner
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
CNL BILTMORE RESORT, LP,
a Delaware limited partnership
By: CNL RESORT SPE GP, LLC
a Delaware limited liability company,
as sole general partner
By: /s/ Xxxx X. Xxxxx, Xx.
-------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
CNL DESERT RESORT, LP,
a Delaware limited partnership,
By: CNL RESORT SPE GP, LLC,
a Delaware limited liability company,
as sole general partner
By: /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
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EXHIBIT A
EXISTING NOTES
Renewal, Amended, Restated and Consolidated Note, dated as of August 18, 2004,
from Borrower to Lender, as assigned by Allonge, dated October 6, 2004 to
LaSalle Bank National Association, as trustee for the benefit of the holders of
the COMM 2004-CNL Floating Rate Commercial Mortgage-Backed Certificates
(LASALLE), and as further pursuant to an Allonge, dated as of the date hereof,
from LaSalle to Lender.
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