OMNIBUS AMENDMENT TO LOAN DOCUMENTS
Exhibit
10.110
OMNIBUS
AMENDMENT
TO
LOAN
DOCUMENTS
This
OMNIBUS AMENDMENT TO LOAN DOCUMENTS, dated as of March 29, 2005 (this
Amendment), by and
among CNL HOTEL
DEL PARTNERS LP, a Delaware limited partnership (Borrower), having
an office c/o CNL Hotels & Resorts, Inc., Center at City Commons, 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, XXX XX
OPERATING, LLC, a Delaware limited liability company (KSL
Guarantor), having
an office c/o KSL II Management Operations, LLC, 00-000 Xxxxxxx Xxxxxxxx, Xx
Xxxxxx, Xxxxxxxxxx 00000, CNL HOSPITALITY PARTNERS, LP, a Delaware limited
partnership (CNL
Guarantor; and
together with KSL Guarantor, Guarantor), having
an office c/o CNL Hotels & Resorts, Inc., Center at City Commons, 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, HOTEL DEL XXXXXXXX, XX, a Delaware
limited partnership (Operating
Lessee), having
an address at 00-000 Xxxxxxx Xxxxxxxx, Xx Xxxxxx, Xxxxxxxxxx 00000, XXX DC
MANAGEMENT LLC (Manager), having
an address at 00-000 Xxxxxxx Xxxxxxxx, Xx Xxxxxx, Xxxxxxxxxx 00000, and GERMAN
AMERICAN CAPITAL CORPORATION, a Maryland corporation, having an office at 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and assigns,
Lender).
WHEREAS,
pursuant to that certain Loan and Security Agreement, dated as of February 9,
2005 (the Loan Agreement), by and
between Borrower and Lender, Xxxxxx made a loan to Borrower in the principal
amount of $230,000,000 (the Loan), which
Loan is evidenced by that certain Note, dated as of February 9, 2005 (the
Note), made
by Xxxxxxxx in favor of Xxxxxx, as amended pursuant to that certain Amendment to
Note, dated as of the date hereof, by and between Xxxxxxxx and Lender (the
Amendment
to Note);
WHEREAS,
the Loan is secured by, among other things, (i) that certain Deed of Trust,
Security Agreement, Financing Statement, Fixture Filing and Assignment of
Leases, Rents, Hotel Revenue and Security Deposits, dated as of February 9, 2005
(the Security
Instrument), by and
among Borrower, Operating Lessee, and Lender, (ii) that certain Account and
Control Agreement, dated as of February 9, 2005 (the Cash
Management Agreement), by and
among Borrower, Lender, and Cash Management Bank; (iii) that certain Manager's
Consent, Subordination of Management Agreement, and Non-Disturbance Agreement,
dated as of February 9, 2005 (the Manager's
Consent), by and
among Borrower, Operating Lessee, Manager, and Xxxxxx, (iv) that certain
Guaranty of Recourse Obligations, dated as of February 9, 2005 (the Guaranty), by
Guarantor for the benefit of Xxxxxx, (v) that certain Environmental Indemnity,
dated as February 9, 2005 (the Environmental Indemnity), by
Guarantor for the benefit of Lender, and (vi) that certain Trademark Security
Agreement, dated as of February 9, 2005 (the Trademark
Agreement), from
Borrower to Lender (the Loan Agreement, the Note, the Security Instrument, the
Cash Management Agreement, the Manager's Consent,
the
Guaranty, the Environmental Indemnity, and the Trademark Agreement are
hereinafter collectively referred to as the Loan Documents);
and
WHEREAS,
Xxxxxxxx, CNL Guarantor, KSL Guarantor, Manager, Operating Lessee, and Xxxxxx
desire to amend the Loan Documents as set forth herein.
NOW
THEREFORE, in consideration of Ten Dollars ($10.00) paid in hand, the foregoing
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Borrower, CNL Guarantor, KSL Guarantor,
Manager, Operating Lessee, and Xxxxxx agree to amend the Loan Documents as
follows:
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1.
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Definitions.
Capitalized terms used in this Amendment and not defined herein shall have
the meaning provided in the Loan Agreement.
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2.
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Amendment
to Loan Agreement. The Loan Agreement is hereby amended as
follows:
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(i)
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by
deleting the definitions of "Intermediate Mezzanine Loan," "Intermediate
Mezzanine Note," "Junior Mezzanine Loan," and "Junior Mezzanine Note" in
Section 1.1 and inserting the following in their place and
stead:
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"Intermediate
Mezzanine Loan
shall mean that certain mezzanine loan from Intermediate Mezzanine Lender
to the Intermediate Mezzanine Borrower in the original principal of
$20,000,000 that is evidenced and secured by the Intermediate Mezzanine
Loan Documents."
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"Intermediate
Mezzanine Note
shall mean that certain Mezzanine Note (Intermediate Mezzanine), dated the
date hereof, made by Intermediate Mezzanine Borrower, as maker, in favor
of Intermediate Mezzanine Lender, as payee, in the original principal
amount of $20,000,000, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time."
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"Junior
Mezzanine Loan
shall mean that certain mezzanine loan from Junior Mezzanine Lender to the
Junior Mezzanine Borrower, to be funded on or after the date hereof, in
the original principal amount of up to $60,000,000, that will be evidenced
and secured by the Junior Mezzanine Loan Documents."
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2
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"Junior
Mezzanine Note
shall mean that certain Mezzanine Note (Junior Mezzanine), to be funded on
or after the date hereof, made by Xxxxxx Xxxxxxxxx Xxxxxxxx, as maker, in
favor of Xxxxxx Xxxxxxxxx Xxxxxx, as payee, in the original principal
amount of up to $60,000,000."
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(ii)
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by
deleting Section 3.1.5(a) (ix) in its entirety and inserting the following
in its place and stead:
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“(ix)
during any Low DSCR Period, funds in an amount equal to 75% of the balance
(if any) remaining or deposited into the Holding Account after the
foregoing deposits set forth in Sections 3.1.5(a)(i) through (viii) and
transfer the same to the Low DSCR Reserve Account; and"
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3.
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Document
References. All references to the Note in any of the Loan Documents shall
be deemed to be a reference to the Note as amended by the Amendment to
Note.
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4.
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LIBOR
Margin. All references to "LIBOR Margin" in any of the Loan Documents
shall be deemed to be a reference to the definition of "LIBOR Margin" as
set forth in the Amendment to Note.
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5.
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Full
Force and Effect. Except as amended by this Amendment, each of the Loan
Documents shall continue to remain in full force and effect.
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6.
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Headings.
Each of the captions contained in this Amendment are for the convenience
of reference only and shall not define or limit the provisions
hereof.
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7.
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Governing Law.
This Amendment shall be governed by the laws of the State of New York,
without regard to choice of law rules.
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8.
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Counterparts.
This Amendment may be executed in one or more counterparts, each of which
shall constitute an original and all of which when taken together shall
constitute one binding agreement.
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9.
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Severability.
The provisions of this Amendment 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 unenforceablity shall affect only such
clause or provision, or part thereof, and not any other clause or
provision of this Amendment.
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[REMAINDER
OF PAGE INTENTIONALLY BLANK]
3
IN
WITNESS WHEREOF, the parties hereto have entered into this Amendment on the date
first written above.
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BORROWER:
CNL HOTEL
DEL PARTNERS LP, a Delaware limited partnership
By: CNL Hotel
Del Partners GP, LC,
a
Delaware limited liability company, its general partner
By:
/s/
Xxxxx X.X. Xxxxx
Name: Xxxxx
X.X. Xxxxx
Title: Senior
Vice President
OPERATING
LESSEE:
HOTEL DEL
XXXXXXXX, XX,
a
Delaware limited partnership
By:
/s/
Xxxxx X.X. Xxxxx
Name: Xxxxx
X.X. Xxxxx
Title: Senior
Vice President
MANAGER:
KSL DC
MANAGEMENT, LLC,
a
Delaware limited liability company
By:
/s/
Xxxx Xxxxxxx
Name: Xxxx
Xxxxxxx
Title:
Chief Financial Officer
KSL GUARANTOR:
KSL DC OPERATING, LLC,
a
Delaware limited liability company
By:
KSL DC
Corporation,
a
Delaware corporation,
its
managing member
By:
/s/
Xxxx Xxxxxxx
Name: Xxxx
Xxxxxxx
Title:
Chief Financial Officer
CNL
GUARANTOR:
CNL
HOSPITALITY PARTNERS, LP,
a
Delaware limited partnership
By: CNL
Hospitality GP Corp.,
a
Delaware corporation,
its
general partner,
By:
/s/
Xxxxx X.X. Xxxxx
Name: Xxxxx
X.X. Xxxxx
Title: Senior
Vice President
LENDER:
GERMAN
AMERICAN CAPITAL
CORPORATION,
a Maryland corporation
By:
/s/
Xxxx X. Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title:
Vice President
By:
/s/
Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
Vice President
