Exhibit 10.18
Master Loan Agreement by and between
CNL Hotel Investors, Inc. and
Jefferson-Pilot Life Insurance Company,
dated February 24, 1999
MASTER LOAN AGREEMENT
THIS MASTER LOAN AGREEMENT is made and entered into as of the 24th day
of February, 1999, by and between CNL HOTEL INVESTORS, INC., a Maryland
corporation and JEFFERSON-PILOT LIFE INSURANCE COMPANY, a North Carolina
corporation.
BACKGROUND
The Borrower desires to borrow from the Lender the total principal
amount of $96,567,501.00 in the form of eight separate loan transactions more
particularly referenced in Article 2 hereof, and the Lender is willing to make
such loans to the Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the promises
herein contained, and each intending to be legally bound hereby, the parties
agree as follows:
ARTICLE 1.
DEFINITIONS
-----------
For the purposes of this Agreement:
Section 1.01 Definitions.
"Agreement" shall mean this Agreement.
"Agreement Date" shall mean the date as of which this Agreement is
dated.
"Applicable Law" shall mean in respect of any Person, all provisions of
constitutions, statutes, rules, regulations and orders of governmental bodies or
regulatory agencies applicable to such Person, and all orders and decrees of all
courts and arbitrators in proceedings or actions to which the Person in question
is a party or by which such Person or its properties are bound.
"Assignment of Leases" shall mean each Absolute Assignment of Rents and
Profits and Collateral Assignment of Leases executed by the Borrower in favor of
the Lender in connection with the closing of each Loan.
"Authorized Signatory" shall mean such senior personnel of the Borrower
as may be duly authorized and designated in writing by the Borrower to execute
documents, agreements and instruments on behalf of the Borrower.
"Borrower" shall mean CNL Hotel Investors, Inc., a Maryland
corporation, its successors and permitted assigns.
"Business Day" shall mean a day on which national banks are open for
the transaction of business required for this Agreement in Greensboro, North
Carolina.
"Collateral" shall mean and include all real and personal property of
the Borrower, whether now owned or hereafter acquired by the Borrower or in
which the Borrower has or hereafter acquires any interest, to the extent of such
interest, with respect to each Security Agreement, Deed of Trust, Assignment of
Leases, or any other instrument or agreement now or hereafter effective in favor
of the Lender as security for the payment and performance of all or any portion
of the Obligations.
"Collateral Hotels" shall mean any of the hotels identified in Section
2.01 of this Agreement which have been conveyed to Lender under a Deed of Trust.
"Deed of Trust" shall mean each deed of trust, security agreement and
fixture filing executed by Borrower to a trustee for the benefit of Lender in
connection with the closing of each Loan.
"Lender" shall mean Jefferson-Pilot Life Insurance Company, a North
Carolina corporation.
"Lien" shall mean, with respect to any property, any deed of trust,
lien, pledge, assignment, charge, security interest, title retention agreement,
levy, execution, seizure, attachment, garnishment, or other encumbrance of any
kind in respect of such property, whether or not ▇▇▇▇▇▇, vested, or perfected.
"Loan" shall mean and include any single loan transaction made by the
Lender to or for the benefit of the Borrower as more particularly detailed in
Article 2, and "Loans" shall mean and include all eight loans made by the Lender
to or for the benefit of the Borrower as more particularly detailed in Article
2.
"Loan Commitments" shall mean the eight separate Mortgage Loan
Commitments issued by the Lender in favor of the Borrower dated December 1,
1998, and accepted by CNL Hospitality Advisors, Inc. on behalf of the Borrower
on January 18, 1999, copies of which are attached hereto as Exhibits "A" through
"H".
"Loan Documents" shall mean this Agreement, the Note, the Security
Agreement, the Deed of Trust, the Assignment of Leases, the Uniform Commercial
Code financing statements, and all other documents or agreements executed in
connection herewith and therewith.
"Materially Adverse Effect" shall mean any materially adverse effect
upon the business, assets, liabilities, financial condition, results of
operations, or business prospects of the Borrower or upon the ability of the
Borrower to perform any material obligations under this Agreement or any other
Loan Document resulting from any act, omission, situation, status, event, or
undertaking, either singly or taken together.
"Maturity Date" shall mean July 31, 2009, or such earlier date as
payment of the Loan shall be due (whether by acceleration or otherwise).
"Necessary Authorizations" shall mean all authorizations, consents,
approvals, permits, licenses and exemptions of, filings and registrations with,
and reports to, all governmental and other regulatory authorities, whether
federal, state, or local, and all agencies thereof.
"Note" shall mean each promissory note executed by the Borrower in
favor of the Lender in connection with the closing of each Loan.
"Obligations" shall mean all payment and performance duties,
liabilities, and obligations of the Borrower to the Lender, including without
limitation, all liabilities now or at any time or times hereafter owing to the
Lender under this Agreement, each Note, Deed of Trust, Assignment of Leases,
Security Agreement, and the other Loan Documents.
"Person" shall mean an individual, corporation, partnership, trust, or
unincorporated organization, or a government or any agency or political
subdivision thereof.
"Security Agreement" shall mean the Security Agreement from the
Borrower in favor of the Lender, in form and substance approved by the Lender.
Each definition of a document in this Article 1 shall include such document as
amended, modified, or supplemented from time to time with the prior consent of
the Lender, and as actually executed by the parties thereto, and, except where
the context otherwise requires, definitions imparting the singular and referring
to an individual Loan shall include the plural referring to all Loans, and vice
versa. Except where specifically restricted, reference to a party to a Loan
Document includes that party and its successors and permitted assigns.
ARTICLE 2.
THE LOANS
Section 2.01 The Loans. The Lender has agreed to lend the total
principal sum of not more than $96,567,501.00 to the Borrower as more
particularly set forth in the Loan Commitments, and the terms and conditions of
the Loan Commitments are incorporated into this Agreement by reference thereto.
The amount and security address for each Loan pursuant to the Loan Commitments
is as follows:
Loans Loan Number Loan Amount Security
----- ----------- ----------- --------
1. 099217 $17,695,748.00 Residence Inn, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇;
2. 099218 $ 8,776,371.00 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇;
3. 099219 $10,455,733.00 Residence Inn, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
4. 099220 $18,654,195.00 Marriott Courtyard, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇;
5. 099221 $10,818,150.00 Marriott Courtyard, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
Loans Loan Number Loan Amount Security
----- ----------- ----------- --------
6. 099222 $17,629,632.00 Marriott Suites, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇;
7. 099223 $ 6,651,333.00 Marriott Courtyard, Legacy Park and
Dallas North Tollway, Plano, Texas; and
8. 099224 $ 5,886,339.00 Residence Inn, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇.
Each Loan shall be consummated in accordance with the applicable Loan Commitment
and shall be evidenced by a Note and secured by a Deed of Trust, an Assignment
of Leases and a Security Agreement.
Section 2.02 Cross-Default. The Borrower covenants and agrees for the
benefit of the Lender that any default, which continues beyond applicable notice
and cure periods, under any of the Loan Commitments or under any of the Loans,
or any of the documentation evidencing, securing or otherwise relating to the
Loans, shall be and constitute a default under all Loan Commitments and under
all Loans and the documentation evidencing, securing or otherwise relating to
Loan Commitments and the Loans; and the Loan Commitments and the Loan Documents
are so cross-defaulted. Specifically, Borrower agrees, subject to the provisions
and limitations contained in Paragraphs 9, 10 and 12 of the Loan Commitments,
that:
(a) A default, which continues beyond applicable notice and
cure periods, under any of the Loan Commitments or under any of the
documents evidencing, securing or otherwise relating to any individual
Loan shall also constitute a default under all other Loan Commitments
and under the documents, securing or otherwise relating to all other
Loans and shall entitle the Lender to terminate all Loan Commitments
and to exercise any and all rights provided in the documents
evidencing, securing or otherwise relating to all other Loans, or
otherwise available at law or in equity; and
(b) Borrower hereby acknowledges and agrees that, in the case
of a default, which continues beyond applicable notice and cure
periods, under any of the Loan Documents evidencing, securing or
otherwise relating to any of the Loans, the Lender may, at its option,
foreclose any Deed of Trust or avail itself of any other remedy
provided in any other Loan Document. If and when the Lender shall
foreclosure any Deed of Trust, or so avail itself of any other remedy,
then the sale by the Lender of any property so secured, or the exercise
of any other remedy, shall not exhaust Lender's power of sale contained
in the other Deeds of Trust, or remedies contained in the other Loan
Documents, and the Lender is specifically empowered to make successive
sales and exercise other remedies, until all Collateral shall be sold
and all remedies exercised, or the entire indebtedness created under
the Loans has been extinguished.
Section 2.03 Cross-Collateralization. All Loans are
cross-collateralized; specifically, the Borrower agrees that in the event any
Deed of Trust is foreclosed, or any remedy under any of the other Loan Documents
exercised, and the proceeds of such foreclosure or other remedy exceed the
primary indebtedness secured by such Loan Document (the Note referenced in each
Loan Document which grants security being the primary indebtedness secured by
that Loan Document), the excess proceeds shall be retained by the Lender and
immediately applied to the outstanding indebtedness secured by the other Loan
Documents. The Lender shall be entitled to retain all proceeds of any such
foreclosure sale or exercise of such remedy until all indebtedness secured by
all Loan Documents shall have been paid in full.
Section 2.04 No Release. The Borrower shall be permitted to prepay the
Notes as provided in Exhibit B attached to each Note; however, no Collateral
shall be released from the provisions of any Loan Document until such time as
all Loans have been paid in full, except as otherwise provided in the Deeds of
Trust or other Loan Documents.
Section 2.05 Incorporation by Reference. If any Loan Document shall
reference the cross-default provisions of Section 2.02 and the
cross-collateralization provisions of Section 2.03, said provisions shall be
incorporated by reference to the same extent as if set forth in full in each
Loan Document.
Section 2.06 Interest. The Borrower shall pay interest on the
outstanding unpaid principal amount of the Loans at the times, in the amounts
and in the manner provided in the Loan Documents.
Section 2.07 Repayment. The Loans shall be repaid at the times, in the
amounts and in the manner provided in the Loan Documents.
ARTICLE 3.
GENERAL COVENANTS
So long as any of the Obligations is outstanding and unpaid and unless
the Lender shall otherwise consent in writing:
Section 3.01 Preservation of Existence and Similar Matters. The
Borrower will (a) preserve and maintain its existence, rights, franchises,
licenses, and privileges in its jurisdiction of incorporation including, without
limitation, all Necessary Authorizations and (b) qualify and remain qualified
and authorized to do business in each jurisdiction in which the character of its
properties or the nature of its businesses requires such qualification or
authorization.
Section 3.02 Compliance with Applicable Law. The Borrower will comply
with all requirements of Applicable Law.
Section 3.03 Compliance with Covenants. The Borrower will comply with
all covenants and agreements contained in the Loan Documents.
Section 3.04 Use of Proceeds. The Borrower will use the proceeds of the
Loans solely for the purpose of acquiring the Collateral.
Section 3.05 Further Assurances. The Borrower will promptly cure, or
cause to be cured, defects in the creation and issuance of the Notes, and the
execution and delivery of the Loan Documents (including this Agreement), and the
perfection of any Liens in favor of the Lender resulting from any act or failure
to act by the Borrower or any employee or officer thereof. The Borrower at its
expense will promptly execute and deliver to the Lender, or cause to be executed
and delivered to the Lender, all such other and further documents, agreements,
and instruments which are necessary in compliance with or accomplishment of the
covenants and agreements of the Borrower in the Loan Documents, including this
Agreement, or to evidence further and more fully describe the Collateral, or to
correct any omissions or errors in the Loan Documents, or more fully to state
the obligations set out herein or in any of the Loan Documents, or to perfect,
protect, or preserve any Liens created pursuant to any of the Loan Documents, or
to make any recordings, to file any notices, or to obtain any consents, all as
may be necessary or appropriate in connection therewith as may be reasonably
requested.
Section 3.06 Broker's Claims. Borrower and Lender each acknowledge that
there are no brokers involved with the Loans, other than ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.
The Borrower hereby indemnifies and agrees to hold the Lender harmless from and
against any and all losses, liabilities, damages, costs and expenses (including
reasonable attorneys' fees and expenses) which may be suffered or incurred by
the Lender in respect of any claim, suit, action or cause of action now or
hereafter asserted by a broker or any Person acting in a similar capacity
arising from or in connection with the execution and delivery of this Agreement
or any other Loan Document or the consummation of the transactions contemplated
herein or therein.
ARTICLE 4.
MISCELLANEOUS
Section 4.01 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 4.02 Severability. Any provision of this Agreement which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 4.03 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
Section 4.04 Use of Defined Terms. All terms defined in this Agreement
shall have the same defined meanings when used in any of the other Loan
Documents, unless otherwise defined therein or unless the context shall require
otherwise, and all terms not otherwise defined in this Agreement shall have the
same meaning as defined in the other Loan Documents, unless the context shall
require otherwise.
Section 4.05 Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and the plural shall
include the singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
Section 4.06 Entire Agreement; Amendments. This Agreement and the other
Loan Documents represent the entire agreement between the Borrower and the
Lender with respect to the subject matter of this transaction. No amendment or
modification of the terms and provisions of this Agreement shall be effective
unless in writing and signed by the Lender and the Borrower.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
have caused it to be executed under seal by their duly authorized officers, all
as of the day and year first above.
BORROWER:
CNL HOTEL INVESTORS, INC., a Maryland
corporation
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
(Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ )
(Title: Executive Vice President )
LENDER:
JEFFERSON-PILOT LIFE INSURANCE COMPANY,
a North Carolina corporation
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL)
(Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ )
(Title: Assistant Vice President )
