EXHIBIT 10.43
THIRD AMENDMENT AND SUPPLEMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT AND SUPPLEMENT TO AMENDED AND RESTATED LOAN
AGREEMENT, dated as of November 15, 2002, (this "Third Amendment"), between
LASALLE NATIONAL BANK, AS TRUSTEE FOR THE REGISTERED HOLDERS OF BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES, INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WYN1 ("Lender"), assignee of BEAR, XXXXXXX FUNDING,
INC., a Delaware corporation ("Original Lender"), and the Parties Listed on
Schedule A attached hereto (each, an "Individual Borrower" and collectively,
"Borrower") amends that certain Amended and Restated Loan Agreement dated as of
November 5, 1999 (as amended, the "Loan Agreement"), as amended by that certain
First Amendment And Supplement To Amended And Restated Loan Agreement dated
September 6, 2002 (the "First Amendment") and by that certain Second Amendment
And Supplement To Amended And Restated Loan Agreement dated October 11, 2002
(the "Second Amendment").
W I T N E S S E T H:
WHEREAS, Original Lender loaned the original principal sum of
$346,000,000.00 (the "Loan") to Borrower pursuant to the terms and conditions of
the Loan Agreement and evidenced by that certain Promissory Note, dated June 29,
1999, made by Borrower in favor of Original Lender (such Promissory Note,
together with all extensions, renewals, replacements, restatements or
modifications thereof being hereinafter referred to collectively as the "Note")
and secured, in part, by the Mortgages;
WHEREAS, Lender is the current holder of the Note and the Mortgages and
Lender is the current creditor with respect to the Loan; and
WHEREAS, Borrower now wishes to amend the Loan Agreement, and Lender
consents to such amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, Borrower and Lender hereby covenant,
agree, represent and warrant that the Loan Agreement is hereby amended as
follows:
1. The definition of "Note" is deleted and substituted with the following:
"Note A" shall mean, that certain Promissory Note dated the date
hereof and given by Borrowers other than Huntington Borrower (the "Remaining
Borrowers") to Lender in the amount of $318,568,457.80
"Note B" shall mean, that certain Promissory Note dated the date
hereof and given by Xxxx-Xxxx, LLC ("Huntington Borrower") to Lender in the
amount of $27,431,542.20.
"Note" shall mean, that certain promissory note dated June 29, 1999 in
the original principal amount of $346,000,000.00 ("Original Note") given by
Borrower to Original
Lender, as modified by Note A and Note B collectively; provided, however, in the
event Lender shall assign Note B, then at such time and thereafter, "Note" shall
mean the Original Note as modified by Note A.
2. The Remaining Borrowers shall execute and deliver to Lender the Note A,
and Huntington Borrower shall execute and deliver to Lender the Note B in the
form set forth as Exhibits "A" and "B" to this Third Amendment. Huntington
Borrower shall execute and deliver to Lender an Amendment to Mortgage and
Security Agreement in the form set forth as Exhibit "C" to this Third Amendment,
which Amendment to Mortgage and Security Agreement shall amend the Mortgage and
Security Agreement dated June 29, 1999, from Huntington Borrower to Original
Lender (the "Huntington Mortgage") covering the property more commonly known as
the Hilton Huntington. The purpose of this Third Amendment is to restructure the
Original Note to allow Huntington Borrower to sell the Hilton Huntington and
have the Note B and the Huntington Mortgage assigned to Bear Xxxxxxx Commercial
Mortgage, Inc. ("New Lender"), which in turn is financing the purchase by
Borrower's buyer of the Hilton Huntington. After the conclusion of such sale of
the Hilton Huntington, the principal balance of the Loan and Note A shall be
determined in the same manner as if Borrower had obtained a release of the
Hilton Huntington in accordance with Section 2.4.1 of to Loan Agreement and this
Third Amendment and accompanying instruments had never been entered into. Only
as it pertains to Note B and the Huntington Mortgage following their sale and
assignment to New Lender (i) Section 9.3 of the Loan Agreement is hereby
modified by deleting subparagraph (g) in its entirety, and (ii) Loan Documents
shall mean and include only Note B and the Huntington Mortgage. Only Note B and
the Huntington Mortgage are being assigned to New Lender; no other Loan
Documents (including, without limitation, any Environmental Indemnities, Reserve
Funds or other collateral or security for Note B) are being assigned to New
Lender. From and after the sale and assignment of Note B and the Huntington
Mortgage to New Lender, Lender shall deliver to the Huntington Borrower or its
designee all funds on deposit in the Lockbox Account, the Cash Collateral
Account, and any funds or other deposits or security relating to the Hilton
Huntington and the Huntington Borrower shall be automatically released and
discharged from the Loan Documents (other than Note B and the Huntington
Mortgage as amended). In the event that Note B and the Huntington Mortgage (as
amended by the Amendment to Mortgage and Security Agreement) are not sold and
assigned to New Lender on or before December 31, 2002, the parties hereto agree
that (i) this Third Amendment, Note A and Note B shall be null and void, and
(ii) the Note and the Huntington Mortgage shall be in full force and effect as
if this Third Amendment had never been in effect.
3. Except as specifically amended hereby, all terms, conditions, provisions
and covenants contained in the Loan Agreement shall remain in full force and
effect as written.
4. Unless otherwise defined in this Third Amendment, terms defined in the
Loan Agreement or in any of the Loan Documents shall have their defined meanings
when used herein.
5. This Third Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, legal representatives, successors
and assigns.
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6. This Third Amendment may be executed in any number of counterparts with
the same effect as if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
7. This Third Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to principles of
conflict of laws and any applicable law of the United States of America.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be duly executed by their duly authorized representatives, all as
of the day and year first above written.
LENDER:
LASALLE BANK NATIONAL BANK, AS TRUSTEE
FOR THE REGISTERED HOLDERS OF BEAR
XXXXXXX COMMERCIAL MORTGAGE SECURITIES,
INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1999-WYN1
By: ORIX Capital Markets, LLC, its Servicer
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Portfolio Manager
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BORROWER:
RAVINIA, LLC, a Delaware limited liability
company
By: Ravinia Manager Corp., a Delaware
corporation Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
DT-MIAMI, L.P., a Delaware limited partnership
By: DT-Miami GP, LLC, a Delaware limited
liability company, General Partner
By: DT-Miami GP Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
DT-DES PLAINES, LLC, a Delaware limited
liability company
By: DT-Des Plaines Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
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DT-TALLAHASSEE, L.P., a Delaware limited
partnership
By: DT-Tallahassee GP, LLC, a Delaware limited
liability company, General Partner
By: DT-Tallahassee GP Manager Corp., a
Delaware corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
H-DELMAR, LLC, a Delaware limited liability
company
By: H-Delmar Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
H-CLEVELAND, LLC, a Delaware limited liability
company
By: H-Cleveland Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
XXXX-XXXX, LLC, a Delaware limited liability
company
By: Xxxx-Xxxx Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
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and
H-GATEWAY, LLC, a Delaware limited liability
company
By: H-Gateway Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
R-HOUSTON, L.P., a Delaware limited
partnership
By: R-Houston GP, LLC, a Delaware limited
liability company, General Partner
By: R-Houston GP Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
MAR-TY, LLC, a Delaware limited liability
company
By: Mar-Ty Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
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W-BUTTES, LLC, a Delaware limited liability
company
By: W-Buttes Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
W-EMERALD, LLC, a Delaware limited liability
company
By: W-Emerald Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
W-XXXXXXXX, X.X., a Delaware limited
partnership
By: W-Xxxxxxxx XX, LLC, a Delaware limited
liability company, General Partner
By: W-Xxxxxxxx XX Manager Corp., a
Delaware corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
W-INDIANA, LLC, a Delaware limited liability
company
By: W-Indiana Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
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and
W-COLINAS, L.P., a Delaware limited
partnership
By: W-Colinas GP, LLC, a Delaware limited
liability company, General Partner
By: W-Colinas GP Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
W-NOVI, LLC, a Delaware limited liability
company
By: W-Novi Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
W-PLEASANTON, LLC, a Delaware limited
liability company
By: W-Pleasanton Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
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W-SCHAUMBURG, LLC, a Delaware limited
liability company
By: W-Schaumburg Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
W-WOOD XXXX, LLC, a Delaware limited liability
company
By: W-Wood Xxxx Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
and
W-BEL AGE, LLC, a Delaware limited liability
company
By: W-Bel Age Manager Corp., a Delaware
corporation, Manager
By: /s/ XXXX XXXXX
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
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Schedule A
List of Borrowers
INDIVIDUAL BORROWER PROPERTY
Ravinia, LLC, a Delaware limited liability company Crowne Plaza Ravinia
DT-Tallahassee, L.P., a Delaware limited partnership Doubletree Hotel Tallahassee
DT-MIAMI, L.P., a Delaware limited partnership Doubletree Miami
DT-Des Plaines, LLC, a Delaware limited liability company Doubletree Chicago
W-Xxxxxxxx, X.X., a Delaware limited partnership Wyndham Garden Franklin
R-Houston, L.P., a Delaware limited partnership Radisson Suites Houston
Xxxx-Xxxx, LLC, a Delaware limited liability company Huntington Hilton
H-Gateway, LLC, a Delaware limited liability company Hilton Newark Gateway
H-Cleveland LLC, a Delaware limited liability company Hilton Inn Cleveland
W-Emerald, LLC, a Delaware limited liability company Wyndham Emerald Plaza
H-Delmar, LLC, a Delaware limited liability company Hilton Del Mar
W-Colinas, L.P., a Delaware limited partnership Wyndham Garden Las Colinas
W-Pleasanton, LLC, a Delaware limited liability company Wyndham Garden Pleasanton
Mar-Ty, LLC, a Delaware limited liability company Xxxx Marriott
W-Indiana, LLC, a Delaware limited liability company Wyndham Garden Indianapolis
W-Buttes, LLC, a Delaware limited liability company Wyndham Buttes
W-Schaumburg, LLC, a Delaware limited liability company Wyndham Garden Schaumburg
W-Wood Xxxx, LLC, a Delaware limited liability company Wyndham Garden Wood Xxxx
W-Novi, LLC, a Delaware limited liability company Wyndham Garden Novi
W-Bel Age, LLC, a Delaware limited liability company Wyndham Bel Age
