MEZZANINE NOTE (Intermediate Mezzanine)
EXHIBIT
10.98
(Intermediate
Mezzanine)
$20,000,000 February
9, 2005
MEZZANINE
NOTE (Intermediate Mezzanine), dated as of February 9, 2005 (this Mezzanine
Note), by CNL
HOTEL DEL INTERMEDIATE MEZZ PARTNERS, LP, a Delaware limited partnership
(Mezzanine
Borrower) having
an office at c/o CNL Hotels & Resorts, Inc., Center at City Commons, 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, 00xx Xxxxx, 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) four percent (4%)
above the LIBOR Rate, adjusted from time to time as set forth
herein.
Extension
Notice shall
mean the First Extension Notice or the Second Extension Notice, as
applicable.
Extension
Option shall
mean the First Extension Option or the Second Extension Option, as
applicable.
First
Extended Maturity Date shall
have the meaning set forth in Section
5(a).
First
Extension Notice shall
have the meaning set forth in Section
5(a).
First
Extension Option shall
have the meaning set forth in Section
5(a).
Initial
Maturity Date shall
mean February 9, 2008.
Interest
Determination Date shall
mean, with respect to each Interest Period, the date which is two (2) Business
Days prior to the fifteenth (15th) day of each calendar month.
Interest
Period shall
mean each interest period commencing on the fifteenth (15th) calendar day of a
calendar month and ending on (and including) the fourteenth (14th) calendar day
of the following 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 140 basis points (1.40%) 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 the Initial Maturity Date, provided that (a) in the event of the exercise
by Mezzanine Borrower of the First Extension Option pursuant to Section
5(a) of this
Mezzanine Note, the Maturity Date shall be the First Extended Maturity Date, and
(b) in the event of the exercise by Mezzanine Borrower of the Second Extension
Option pursuant to Section
5(a) of this
Mezzanine Note, the Maturity Date shall be the Second Extended Maturity Date, 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
either the Mortgage Loan or Senior Mezzanine Loan is 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.
Mezzanine
Loan Agreement shall
mean the Mezzanine Loan and Security Agreement (Intermediate Mezzanine), dated
the date hereof, between Mezzanine Borrower and Mezzanine Lender.
Mezzanine
Note shall
have the meaning provided in the first paragraph hereof.
Payment
Date shall be
the ninth (9th) 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 9, 2005 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 Loan (or any part thereof, to the extent permitted by the Loan
Documents (Intermediate Mezzanine)) (i) on or after the Closing Date and to but
excluding March 9, 2005, 1% of the outstanding Principal Amount being prepaid,
(ii) on or after March 9, 2005 and to but excluding April 9, 2005, 0.9228% of
the outstanding Principal Amount being prepaid, (iii) on or after April 9, 2005
and to but excluding May 9, 2005, 0.8459% of the outstanding Principal Amount
being prepaid, (iv) on or after May 9, 2005 and to but excluding June 9, 2005,
0.769% of the outstanding Principal Amount being prepaid, (v) on or after June
9, 2005 and to but excluding July 9, 2005, 0.6921% of the outstanding Principal
Amount being prepaid, (vi) on or after July 9, 2005 and to but excluding August
9, 2005, 0.6152% of the outstanding Principal Amount being prepaid, (vii) on or
after August 9, 2005 and to but excluding September 9, 2005, 0.5383% of the
outstanding Principal Amount being prepaid, (viii) on or after September 9, 2005
and to but excluding October 9, 2005, 0.4614% of the outstanding Principal
Amount being prepaid, (ix) on or after October 9, 2005 and to but excluding
November 9, 2005, 0.3845% of the outstanding Principal Amount being prepaid, (x)
on or after November 9, 2005 and to but excluding December 9, 2005, 0.3076% of
the outstanding
Principal
Amount being prepaid, (xi) on or after December 9, 2005 and to but excluding
January 9, 2006, 0.2307% of the outstanding Principal Amount being prepaid,
(xii) on or after January 9, 2006 and to but excluding February 9, 2006, 0.1538%
of the outstanding Principal Amount being prepaid, and (xiii) on or after
February 9, 2006 and to but excluding March 9, 2006, 0.0769% of the outstanding
Principal Amount being prepaid. No Prepayment Fee shall be due on any payments
on or after March 9, 2006. 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 TWENTY MILLION DOLLARS ($20,000,000) or so much as may be outstanding under
this Mezzanine Note from time to time.
Second
Extended Maturity Date shall
have the meaning set forth in Section
5(a).
Second
Extension Notice shall
have the meaning set forth in Section
5(a).
Second
Extension Option shall
have the meaning set forth in Section
5(a).
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 15, 2005, at
a rate per annum equal to 3.99%; and |
| ii. |
from
and including February 15, 2005, 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 (Intermediate 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. |
| a. |
On
each Payment Date, Mezzanine Borrower shall pay to Mezzanine Lender
interest accruing hereunder during the entire Interest Period in which
said Payment Date occurs. |
| b. |
All
payments made by Mezzanine Borrower hereunder or under any of the Loan
Documents (Intermediate 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
(Intermediate Mezzanine), other than the Principal Amount, or other
charges provided in the Loan Documents (Intermediate Mezzanine), shall be
due and payable as provided in the Loan Documents (Intermediate
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 (Intermediate 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 (Intermediate
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.
Prior to February 15, 2005, the outstanding Principal Amount may not be
paid in whole or in part. |
| a. |
Voluntary
Prepayments.
Mezzanine Borrower shall have the right on any Business Day on or after
February 15, 2005 to prepay the Principal Amount in whole or in part, 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; |
| ii. |
Mezzanine
Borrower shall comply with the provisions set forth in Section
4(c) of
this Mezzanine Note; and |
| iii. |
No
prepayment shall be permitted on any date during the period commencing on
the first calendar day immediately following a Payment Date to, but not
including, the Interest Determination Date in such calendar
month. |
| 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, but in such event no
Prepayment Fee shall be payable; 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 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 from the fifteenth (15th) day of any calendar month through the ninth
(9th) day of the succeeding calendar month, through the end of the
Interest Period during which such prepayment occurs and (2) in the event
such prepayment is made from the Interest Determination Date in any
calendar month through the fourteenth (14th) day of any calendar month,
through the end of the Interest Period next succeeding the Interest Period
in which such prepayment occurs. In either 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. 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 Principal Amount prepaid, such unpaid
interest calculated through the date of such
prepayment. |
| 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, then due under the Mezzanine Note, the
Mezzanine Loan Agreement, the Pledge, and the other Loan Documents
(Intermediate 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. |
EXTENSION
OPTION.
|
| a. |
Extension
Option.
Subject to the provisions of this Section
5,
Mezzanine Borrower shall have the option (the First
Extension Option),
by irrevocable written notice (the First
Extension Notice)
delivered to Mezzanine Lender no later than thirty (30) days prior to the
Initial Maturity Date, to extend the Maturity Date to February 9, 2009
(the First
Extended Maturity Date).
In the event |
Mezzanine
Borrower shall have exercised the First Extension Option, Mezzanine Borrower
shall have the option (the Second
Extension Option), by
irrevocable written notice (the Second
Extension Notice)
delivered to Mezzanine Lender no later than thirty (30) days prior to the First
Extended Maturity Date, to extend the First Extended Maturity Date to February
9, 2010 (the Second
Extended Maturity Date).
Mezzanine Borrower's right to so extend the Maturity Date shall be subject to
the satisfaction of the following conditions precedent prior to each extension
hereunder:
| i. |
no
Monetary Default or Event of Default shall have occurred and be continuing
both on (A) the date Mezzanine Borrower delivers the First Extension
Notice or the Second Extension Notice, as applicable, and (B) on the
Initial Maturity Date and the First Extended Maturity Date, as
applicable; |
| ii. |
Mezzanine
Borrower shall obtain and deliver to Mezzanine Lender not later than one
(1) Business Day prior to the first day of the term of the Loan as
extended one or more Extension Interest Rate Cap Agreements from an
Acceptable Counterparty which Extension Interest Rate Cap Agreement(s)
shall have a strike rate equal to the Maximum Pay Rate and shall be
effective for the period commencing on the day immediately following the
then applicable Maturity Date (prior to giving effect to the applicable
Extension Option) and ending on the last day of the Interest Period in
which the applicable extended Maturity Date
occurs; |
| iii. |
Mezzanine
Borrower shall deliver (or shall commit to deliver within five (5)
Business Days thereafter) a Counterparty Opinion with respect to the
Extension Interest Rate Agreement and the related Acknowledgment;
and |
| iv. |
Mortgage
Borrower and Senior Mezzanine Borrower simultaneously extend the term of
each of the Mortgage Loan and the Senior Mezzanine Loan, as applicable,
for an identical period of time. |
| b. |
Extension
Documentation.
As soon as practicable following an extension of the Maturity Date
pursuant to this Section
5,
Mezzanine Borrower shall, if requested by Mezzanine Lender, execute and
deliver an amendment of and/or restatement of the Mezzanine Note and
shall, if requested by Mezzanine Lender, enter into such amendments to the
related Loan Documents (Intermediate Mezzanine) as may be necessary or
appropriate to evidence the extension of the Maturity Date as provided in
this Section
5;
provided,
however,
that no failure by Mezzanine Borrower to enter into any such amendments
and/or restatements shall affect the rights or obligations of Mezzanine
Borrower or Mezzanine Lender with respect to the extension of the Maturity
Date. |
| 6. |
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
(Intermediate 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 the 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 (Intermediate 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 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 (Intermediate
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 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 LOAN. THIS WAIVER SHALL SURVIVE
THE REPAYMENT OF THE 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]
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 HOTEL
DEL INTERMEDIATE MEZZ
PARTNERS,
LP, a Delaware limited partnership
By: CNL Hotel
Del Intermediate Mezz Partners
GP, LLC,
a Delaware limited liability company
Its
General Partner
By:
/s/ Xxxx X. Xxxxx, Xx.
Name:
Xxxx X. Xxxxx, Xx.
Title:
Vice President
