EXHIBIT 10.39
FIRST AMENDMENT TO LOAN AGREEMENT
This FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment") dated as of
June 29, 2001, between W-BROOKFIELD, LLC, DT GLENVIEW, LLC, R-LISLE, LLC,
RAD-XXXX, LLC, PARSIPPANY, LLC, RAD-XXXX, LLC, WCHNW, LLC, W-GARDEN ATLANTA,
LLC, W-CHARLOTTE, LLC, each a Delaware limited liability company, and
H-MELBOURNE, L.P., a Delaware limited partnership, each having its principal
place of business at c/o Wyndham International, Inc., 0000 Xxxxxxxx Xxxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000 (collectively, "Borrower"), and SASCO FLOATING
RATE COMMERCIAL MORTGAGE TRUST 1999-C3, MULTICLASS PASS-THROUGH CERTIFICATES,
SERIES 1999-C3, with an address c/o BNY Asset Solutions LLC, 000 Xxxx Xxx
Xxxxxxx Xxxx., Xxxxx 0000, Xxxxxx, XX 00000 ("Lender").
W I T N E S S E T H:
WHEREAS, on June 28, 1999, Xxxxxx Brothers Holdings Inc., a Delaware
corporation ("Xxxxxx"), made a loan to Borrower in the original principal amount
of $235,000,000.00 (the "Loan"), which Loan is evidenced by a certain Mortgage
Note dated June 28, 1999 in the original principal amount of the Loan (the
"Note") and a Loan Agreement between Xxxxxx and Borrower dated as of the date
hereof (the "Loan Agreement", together with the Note, and all other documents
executed or delivered in connection with the Loan, collectively, the "Loan
Documents"), secured by, among other things, certain mortgages, deeds of trust
or deed to secure debt instruments each dated as of June 28, 1999 (collectively,
the "Mortgages");
WHEREAS, pursuant to the terms of the Loan Agreement, the cash flow
from the Mortgaged Property (as such term is defined in the Loan Agreement) is
subject to periodic evaluation and analysis and, under certain circumstances,
payment to Lender, as more particularly described on Schedule B to the Loan
Agreement;
WHEREAS, Xxxxxx assigned the Loan to the Lender; and
WHEREAS, Borrower and Lender desire to amend certain terms of the Loan
Agreement as provided herein.
NOW, THEREFORE, for Ten Dollars and in consideration of the Loan and
the mutual premises contained in this Agreement, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, Borrower and Lender agree as follows:
1. Defined Terms. Capitalized terms used not otherwise defined herein
shall have the respective meanings ascribed to them in the Loan Agreement.
2. Amendments to Loan Agreement.
(a) Section (a) of Schedule B to the Loan Agreement is hereby amended
to read in its entirety as follows:
"(a) Within 45 days after the end of each calendar quarter, Lender
shall calculate the ratio of (i) DSCNOI (as such term is defined in
this subsection) for only such properties then comprising the
Mortgaged Property (i.e., not theretofore released from the Loan
Documents) for the 12-month period ending the last day of such
calendar quarter (any such calendar quarter, a "DSC Quarter," any such
last day of a DSC Quarter, a "Determination Date") to (ii) the Total
Yearly Debt Service (as such term is defined in this subsection) (such
ratio, the "DSC Ratio"). As used in this subsection, the term "DSCNOI"
means, as of any Determination Date, the amount, on an accrual basis,
by which the aggregate amount of all Rents derived from the operation
of only such properties then comprising the Mortgaged Property during
the 12-month period ending on such Determination Date exceeds the
aggregate of Expenses, including 4% FF&E Reserve contributions, both
of which are calculated on an accrual basis for such 12-month period
in connection with such Mortgaged Property during such 12-month
period. As used herein, the term "Total Yearly Debt Service" means, as
of any Determination Date, the producer of (i) the then outstanding
principal balance of the Loan as of such Determination Date, and (ii)
the greatest of: (A) the actual average interest rate in respect of
the Loan during the 12-month period ending on such Determination Date;
(B) the interest rate in respect of the Loan in effect on such
Determination Date; and (c) 300 basis points (3.00%) in excess of the
bid side yield to the United States Treasury Securities with
maturities of 10 years from and as of the Determination Date)."
3. Enforceable Obligations. Borrower hereby ratifies, affirms,
reaffirms, confirms, acknowledges and agrees that the Loan Agreement, as amended
hereby, and the other Loan Documents represent the valid and enforceable
obligations of Borrower. Borrower agrees that this Amendment does not constitute
a novation of the Loan in any manner whatsoever.
4. Payment of Expenses. Borrower agrees to pay all costs and expenses
incurred in connection with this Amendment, including, but not limited to, any
recording and filing fees, taxes and reasonable attorney's fees and expenses.
5. Limitation of Amendments. This Amendment is limited as specified
and other than the specific amendments contained herein shall not constitute an
amendment, modification or waiver of, or otherwise affect, in any way, any other
provisions of the Loan Agreement or the other Loan Documents. The Loan Agreement
, as amended hereby, and the other Loan Documents are hereby ratified, affirmed
, reaffirmed and confirmed in all respects.
6. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
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7. Captions, etc. The use of the singular shall include the plural
when the context requires and vice-versa. The captions contained herein are for
purposes of convenience and are not part of this Amendment.
8. Further Assurances. Borrower agrees to execute and deliver, or
cause to be executed and delivered, to the Lender, at the sole cost and expense
of Borrower, all other additional documents, instruments and certificates
reasonably necessary to cause this Amendment or any document, instrument or
certificate executed in connection therewith to be, become or remain valid and
effective in accordance with its terms or in order to implement more fully the
intent of this Amendment or such other document, instrument or certificate.
9. Severability. If any term, covenant or condition of this Amendment
is held to be invalid, illegal or unenforceable in any respect, this Amendment
shall be construed without such provision.
10. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the United States of America and the State of
New York.
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IN WITNESS WHEREOF, Borrower and Lender have executed this instrument
as of the day and year first above written.
W-BROOKFIELD, LLC PARSIPPANY, LLC
By: W-Brookfield Manager Corp. By: Parsippany Manager Corp.
its Manager its Manager
By:/s/ XXXXXXX X. XXXXX By:/s/ XXXXXXX X. XXXXX
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
Chief Financial Officer Chief Financial Officer
DT GLENVIEW, LLC WCHNW, LLC
By: DT Glenview Manager Corp. By: WCHNW Manager Corp.
its Manager its Manager
By:/s/ XXXXXXX X. XXXXX By:/s/ XXXXXXX X. XXXXX
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
Chief Financial Officer Chief Financial Officer
R-LISLE, LLC W-GARDEN ATLANTA, LLC
By: R-Lisle Manager Corp. By: W-Garden Atlanta Manager Corp.
its Manager its Manager
By:/s/ XXXXXXX X. XXXXX By:/s/ XXXXXXX X. XXXXX
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
Chief Financial Officers Chief Financial Officer
Signatures continued on next page
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Signatures continued from previous page
RAD-XXXX, LLC W-CHARLOTTE, LLC
By: Rad-Xxxx Manager Corp. By: W-Charlotte Manager Corp.
its Manager its Manager
By:/s/ XXXXXXX X. XXXXX By:/s/ XXXXXXX X. XXXXX
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
Chief Financial Officer Chief Financial Officer
RAD-XXXX, LLC H-MELBOURNE, L.P.
By: Rad-Xxxx Manager Corp. By: H-Melbourne GP, LLC
its Manager its general partner
By:/s/ XXXXXXX X. XXXXX By:/s/ XXXXXXX X. XXXXX
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President
Chief Financial Officer Chief Financial Officer
SASCO FLOATING RATE
COMMERCIAL MORTGAGE TRUST
1999-C3, MULTICLASS
PASS-THROUGH CERTIFICATES,
SERIES 1999-C3
By: BNY Asser Solutions LLC
Its Authorized Agent
By:/s/ XXXXXX XXXXX
------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
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