EXHIBIT 10.17
Master Revolving Line of Credit Loan Agreement with
CNL Hospitality Properties, Inc. and Colonial Bank,
dated July 31, 1998
MASTER REVOLVING
LINE OF CREDIT
LOAN AGREEMENT
THIS MASTER REVOLVING LINE OF CREDIT LOAN AGREEMENT, dated __________,
1998 (the "Master Loan Agreement"), is made by and between CNL HOSPITALITY
PROPERTIES, INC., formerly CNL American Realty Fund, Inc., (a Maryland
corporation) and CNL HOSPITALITY PARTNERS, LP, a Delaware limited partnership
(collectively, "Borrower"), with its offices at 000 X. Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000-0000, and COLONIAL BANK, a state chartered bank organized
and existing under the laws of the State of Florida, with its offices located at
000 X. Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx, 00000 ("Bank").
RECITALS
A. Borrower has applied to Bank for a $30,000,000.00 credit facility to
provide financing for various loans of differing amounts (hereinafter
individually referred to as a "Loan" or collectively as the "Loans"), to be
advanced by Bank pursuant to the terms hereof.
B. Borrower will use the proceeds of the Loans to acquire hotels and
related improvements or amenities ("Hotels"), which shall be leased to
acceptable credit tenants, as herein provided.
C. Borrower and Bank wish to enter into this Master Loan Agreement to
provide a format to be effective, to the extent possible, with respect to such
Loans as Bank has presently agreed to make or may, in the future, agree to make.
D. From time to time Borrower and Bank shall enter into a Funding
Agreement/Loan Summary for each Loan which shall set forth certain specific loan
information (the "Loan Summaries" or, individually, a "Loan Summary") pertaining
to individual Loans that may be approved by Bank as provided herein and agreed
upon between the parties, the terms of which shall be incorporated herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower and Bank hereby agree as
follows:
ARTICLE I
Definitions
1.1 For the purposes hereof, for each Loan:
a. "Architect" or "Supervising Architect" means the architect,
who will serve as Borrower's architect, as identified in the Loan Summary.
Borrower shall retain an architect who will perform various services in
connection with Hotels on behalf of Borrower under an Architect's Contract (as
hereinafter defined) with Borrower. Bank's Consultant and Borrower's supervising
architect shall not be the same person or firm;
b. "Closing Date" means the date upon which a Loan is closed
pursuant to the terms hereof;
c. "Commitment" means Bank's commitment letter (and all
amendments thereto) to Borrower, if any, as described in the Loan Summary, the
terms and conditions of which are incorporated herein by reference, but in the
event of any conflict or discrepancy between the terms of this Master Loan
Agreement and the Commitment, the terms of this Master Loan Agreement shall
control;
d. "Consultant" means the architectural or engineering firm
which Bank shall designate to perform various services on behalf of Bank. The
services to be performed by Bank's Consultant include inspections of the Hotels
and all utilities, services, systems or facilities used in conjunction
therewith;
e. "Default" means a violation of any term, covenant, or
condition hereunder or a Default as defined under any of the Loan Documents
which remains uncured after the expiration of any applicable grace period or
required notice, if any, provided in the Loan Documents;
f. "Default Condition" means the occurrence or existence of an
event or condition which, upon the giving of notice or the passage of time, or
both, would constitute a Default;
g. "Financing Statements" means the UCC financing statements
filed in order to perfect Bank's lien on certain leases, contract rights,
personal property and fixtures as more particularly described therein;
h. "Governmental Authorities" means any local, state, or
federal governmental agency, regulatory body or office, or any
quasi-governmental office (including health and environmental), or any officer
or official of any such agency, office, or body whose consent or approval is
required as a prerequisite to the commencement of the construction of the
Improvements, or to the operation and occupancy of the Improvements or the
Hotel, or to the performance of any act or obligation or the observance of any
agreement, provision or condition of whatsoever nature herein contained;
i. "Hotel" means any Land, building and related structure
designed for overnight accommodation with all related Improvements, amenities,
utilities, parking areas and other facilities associated therewith that is
managed, maintained and operated by an entity with substantial hotel ownership
and management experience.
j. "Improvements" means all improvements on the Land (as
defined hereinbelow), including without limitation the improvements described in
the Loan Summary;
k. "Land" means all the real property upon which a Hotel is
located, including, without limitation, all improvements and amenities
associated therewith, and shall include all easements, licenses, permits,
approvals, drainage rights, impact fee or use credits and all other
hereditaments, right, title and interest associated and used in conjunction with
the Hotel;
l. "Loan Documents" means this Master Loan Agreement, the
Note, the Assignment of Leases and Rents, the Agreement Not to Encumber, and the
Financing Statements, and any other document or writing executed in connection
therewith or in furtherance thereof;
m. "Note" means a promissory note dated as of the Closing Date
executed by Borrower in favor of Bank evidencing a particular Loan for a
particular Hotel, as well as any promissory note or notes issued by Borrower in
substitution, replacement, extension, future advance, amendment, assumption or
renewal of the Note or any such promissory note or notes;
n. "Permitted Encumbrances" means those liens, encumbrances,
easement and other matters specified in the Agreement Not to Encumber as
"Permitted Encumbrances";
o. "Plans" means plans and specifications for the Improvements
prepared by the Architect and identified by Bank, and including such amendments
thereto as may from time to time be made by Borrower and approved by Bank.
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p. "Primary Lease" means a valid, binding executed and
existing lease for the use of a Hotel which is for an initial term of more than
ten (10) years and is entered into between Borrower and a tenant who is an
experienced hotel manager which is deemed to be creditworthy by the Bank and
such other terms as are acceptable to Bank and Bank counsel.
q. "Title Policy" means the owner's title policy meeting the
requirements of this Master Loan Agreement.
ARTICLE II
Line of Credit Guidance Facility
2.1 Loan Facility. Upon the execution of this Master Loan Agreement,
and subject to the terms hereof, the Bank has agree to provide a credit facility
to the Borrower in an amount up to a maximum of $30,000,000.00 (the "Master
Facility"). Borrower hereby acknowledges and agrees that the execution of this
Master Loan Agreement does not obligate Bank to make a future Loan for any
specific future Hotel or any other loans, and that any future request by
Borrower for an additional Loan for a new Hotel shall be made or denied by Bank
in the exercise of its sole discretion. Such decision may not be based on any
specific financial performance or other criteria of Borrower, or a Hotel, or by
prior actions, agreements or loans by Bank to Borrower. Bank shall retain full
and complete discretion to review and approve or disapprove future loan requests
under this Master Loan Agreement as and when such requests are made by Borrower.
Bank shall make any decisions on future requests for a Loan for a future Hotel,
if any, based solely upon its own underwriting and other decision making
processes. Borrower's proper compliance with the Loan Documents (including,
without limitation, this Master Loan Agreement) will not be determinative of
whether any future Loans or other loan requests are approved or granted. Bank
and Borrower acknowledge and agree that the structure of this Master Loan
Agreement has been prepared in such a way as to set out the terms of any future
Loans and to structure the Loan Documents to provide a format that may reduce or
minimize costs in the event future Loans are made by Bank to Borrower and
Borrower acknowledges it has fully consulted with its legal counsel in
connection therewith, and has satisfied itself as to the structure and format of
the Loan Documents delivered and reviewed by Borrower as of the date of this
Master Loan Agreement in that regard.
2.2 Term of Master Facility. The Master Facility shall be for a term of
five (5) years from the date of this Master Loan Agreement, subject to
termination by Bank within ninety (90) days of each anniversary date of this
Master Loan Agreement, in the event the Bank determines there has been a
material deterioration in the Loan or value of the collateral, as determined in
Bank's reasonable discretion, and such termination shall be effective upon
written notice to Borrower within such ninety (90) day period, whereupon the
Master Facility shall expire and terminate on the date so specified in the
notice, provided any outstanding Loan would mature on the maturity date as
provided that in the respective Note evidencing such Loan, and would remain
unaffected by such termination.
2.3 Terms of Future Loans. Upon the approval of any request by Borrower
of a new Loan for a new Hotel, such Loan shall be made in accordance with the
terms and provisions of this Master Loan Agreement and the following terms:
a. Interest Rate: The outstanding principal balance shall bear
interest at a variable rate per annum equal to either (i) the Base Rate plus 30
basis points, or (ii) the LIBOR Rate plus 318 basis points, for Loans on Hotels,
as selected by Borrower at the time of making each loan (the "Interest Rate").
The Interest Rate shall be adjusted daily in accordance with fluctuations in the
Base Rate or the LIBOR Rate, as applicable. "Base Rate" shall mean the
fluctuating rate of interest per annum established by Colonial Bank as its base
lending rate in effect from time to time whether or not such rate shall be
otherwise published. Such Base Rate is established by Colonial Bank as an index
or base rate and may or may not at any time be the best or lowest rate of
interest offered by Bank. The "LIBOR Rate" means a rate per annum for U.S.
dollar deposits for a 30, 60, 90, 180 or 360-day maturity as reported on page
3750 (under the caption "USD" of the Telerate
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Services, Incorporated, screen or such other display as may replace such page)
as of 11:00 a.m., London time, two London Business Days before the relevant
Interest Period begins (or if not so reported, a then as determined by Lender
from another recognized source or interbank quotation). LIBOR shall be rounded
to the next higher 1/1000 of one percent. "London Business Day" means any
business day on which commercial banks are open for international business
(including dealings in dollar deposits) in London.
b. Term: Sixty (60) months from the Closing Date of the Loan
for a specific Hotel.
c. Loan Commitment Fee: Borrower shall pay to Bank a loan
commitment fee equal to one-half of one percent (1/2%) of the disbursements
under each Loan, as provided in Section 4.32.
2.4 Notes. The funds loaned under the Master Facility will be evidenced
by various Notes indicating the principal amount of each Loan made pursuant to
the line of credit; provided, however, that the amount actually due from
Borrower to Bank from time to time will be evidenced by the Bank's records
(provided such amounts are prepared and posted properly without arithmetic or
mathematical errors), and may increase and decrease from time to time, or be
completely repaid and again reborrowed, but in no event shall the total amount
due exceed $30,000,000.00.
2.5 Release by Borrower. Borrower waives and released any claims, now
or in the future, known or unknown, that it may have to require or compel Bank
to provide future Loans other than as may be separately agreed by Borrower and
Bank pursuant to a subsequent commitment letter or other written agreement
between the parties, specifying the terms and conditions of such fundings. Any
such commitment or agreement shall be satisfactory to Bank, in its sole
discretion. In connection therewith, Borrower will execute such additional loan
documentation as Bank shall require including, without limitation, amendments
and modifications to the Loan Documents, together with the Loan Summary, which
will evidence and set forth the particular terms, conditions, restrictions,
agreements and covenants that pertain to the future Loans, as required by Bank.
Borrower acknowledges and agrees that the terms and conditions in any future
Loan Summary and related loan documentation shall be determined independently of
the terms of the Loan Documents and of any prior Loan Summary, if any, and
Borrower shall not rely upon the form and content of the terms of the Loan
Documents and of any prior Loan Summary as being determinative of what may be
included in a future Loan Summary.
2.6 Revolving Feature. The funds loaned under the Master Facility will
be evidenced by the various Notes; provided, however, that the amount actually
due from Borrower to Bank from time to time will be evidenced by Bank's records
and may increase and decrease form time to time or be completely repaid and
again reborrowed.
2.7 Disbursements Under Loans. The parties acknowledge and agree that
the Bank can make one or disbursement of any Loan at the request of Borrower,
provided, however, the aggregate amount of such disbursements shall not exceed
the principal amount of the Note. Each disbursement of the Loan must satisfy the
conditions precedent set forth in Article IV of the Master Revolving Line of
Credit Loan Agreement and such other provisions of the Loan Documents as may
apply.
ARTICLE III
The Loans
As to each Loan made by Bank to Borrower:
3.1 Loan Terms. Subject to the terms and conditions of this Master Loan
Agreement, Bank will lend, and Borrower will borrow, such sums as Bank and
Borrower shall agree upon, as specified in the Loan Summary which borrowing
shall be evidenced by the Note. All of the terms, definitions, conditions, and
covenants of the Note, the Assignment of Leases and Rents, the Agreement Not to
Encumber, and any other
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documents executed in connection therewith or pursuant thereto are expressly
made a part of this Master Loan Agreement by reference in the same manner and
with the same effect as if set forth herein at length and shall have the meaning
set forth in such instrument(s) unless otherwise defined herein.
3.2 Interest. The outstanding principal balance of the Loan shall bear
interest based on a 360 (actual) day year at the interest rate specified in the
Note, and principal and interest shall be due and payable in accordance with the
terms of the Note.
3.3 Disbursements. Bank agrees that it will, from time to time, and so
long as there shall exist no Default Condition or Default, disburse Loan
proceeds to Borrower pursuant to the Loan Documents. The conditions set forth in
this Article III hereof must be satisfied and the conditions set forth in
Article IV hereof must be satisfied before Bank will make the disbursement for
each Loan hereunder.
3.4 Draw Requests. At least three (3) days prior to each Loan
disbursement by Bank, Borrower must submit to Bank a Request for Disbursement on
a form acceptable to Bank, which shall include:
a. Request for Disbursement: A completed Request for
Disbursement signed by Borrower in a format acceptable and certified to Bank,
setting forth the amount of Loan proceeds desired, together with such
certifications and additional information as Bank may require.
b. Owner's Affidavit: A notarized affidavit from Borrower
shall be submitted which certifies that Owner is or shall upon application of
the Disbursement immediately become fee simple title holder to the Hotel.
c. Equity Compliance: Copies of paid invoices or other
acceptable documentation indicating Borrower's investment of Borrower's own
funds in the Hotel for those items and in the amounts indicated on the certified
Cost Breakdown, attached as an exhibit to the Funding Agreement/Loan Summary.
3.5 Disbursement Amounts. Following receipt of a Request for
Disbursement and receipt and review of the report of the Consultant, Bank shall
determine the amount of the disbursement it will make in accordance with the
Bank's underwriting policies adopted from time to time by the Bank.
3.6 Equity Requirements. If Bank determines that costs of acquisition
of a Hotel exceed the amount specified on the Loan Summary, which includes
certain specified amounts of "up front" equity and deferred equity to be paid by
Borrower, or if Bank at any time determines in its reasonable discretion that
the Loan proceeds plus the amount of all equity investments made are not
sufficient to meet the Bank's underwriting policies, and to pay all other sums
due, then Bank shall, upon written Notice to Borrower, have the option of
requiring Borrower to deposit with Bank additional funds from some other source
(or submit evidence to Bank of equity investments previously made) in amounts
sufficient to cover the anticipated or resulting deficit before Bank will
disburse any additional Loan proceeds.
ARTICLE IV
Conditions Precedent to Disbursement of Each Loan
Bank shall not be obligated to make the Loan disbursement with respect
to each Loan until all of the following conditions precedent have been satisfied
as to such Loan by proper evidence, execution and/or delivery to Bank of the
following items, all in form and substance reasonably satisfactory to Bank and
Bank's counsel:
4.1 Note. The original Note, properly executed, shall have been
delivered to Bank.
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4.2 Assignment of Leases and Rents, Security Agreement and Agreement
Not to Encumber. The Assignment of Leases and Rents and the Agreement Not to
Encumber, covering the Hotel, which with the Security Agreement shall be a
validly perfected first priority lien, shall have been delivered to Bank, and
which shall contain, among other provisions, the following provisions:
a. That upon any sale, conveyance, assignment or
transfer of all or any part of the Hotel or any
interest therein, Bank may, at Bank's option, declare
the Loan to be immediately due and payable without
notice or demand. Bank may, in Bank's sole discretion
decide not to exercise said option, in which event
Bank's forbearance may be predicated on such terms
and conditions as Bank may, in Bank's sole discretion
require, including, but not limited to, Bank's
approval of the transferee's creditworthiness and
management ability, the execution and delivery to
Bank by the transferee, prior to the sale, transfer,
assignment or conveyance, of a written assumption
agreement containing such terms as Bank may require,
including, but not limited to, a payment of a part of
the principal amount of the Note, an increase in the
rate of interest payable on the Note, the payment of
an assumption fee, a modification of the term of the
Note, and such other terms or conditions as Bank may
require, or Bank may make any such adjustments in the
terms of the Loan without requiring an assumption by
such transferee;
b. That Borrower shall not, without the prior written
consent of Bank, mortgage, pledge, hypothecate or
otherwise encumber (other than by a lease or leases
of the property which shall be in compliance with
Section 6.21 hereof) all or any portion of the Hotel,
even if such pledge or mortgage is subordinate to
Bank's lien position, and any violation of this
prohibition shall give Bank the right immediately to
accelerate the maturity of the Loan without notice or
demand;
c. That Borrower shall provide evidence that all ad
valorem or other applicable taxes and insurance
premiums have been paid when due.
d. That all income, profits, rents, insurance proceeds
or other incomes from leases or any other source
relating to the Hotel are assigned to the benefit of
the Bank including but not limited to the Primary
Lease, all as more particularly set forth in the
Assignment of Leases and Rents.
e. Any and all Leases assigned to the Bank pursuant
hereto shall be required to contain a provision which
requires the tenant to give written notice to Bank of
any and all defaults of landlord and provides the
Bank opportunity to cure the same, such provision to
be in a form and substance deemed adequate by Bank
and Bank's counsel.
f. That the Assignment of Leases and Rents and Security
Agreement shall be cross- defaulted with respect to
any other indebtedness or obligations from Borrower
to Bank.
4.3 Assignment of FF&E Account. An Assignment of FF&E Account, properly
executed by Borrower and delivered to the Bank.
4.4 Indemnity. A Hazardous Substance Certificate and Indemnification
Agreement, properly executed by Borrower, shall have been delivered to Bank.
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4.5 Financing Statements. The Financing Statements on forms approved
for filing in the appropriate state and local filing offices shall have been
properly executed.
4.6 Title Policy. The Title Policy (or a satisfactory commitment or
binder therefore), as to each Hotel from First American Title Insurance Company
or such other company or companies acceptable to Bank (the "Title Company"), and
on such form, approved by Bank issued by the Title Company to the Borrower in
the amount equal to or greater than the amount of the Loan insuring that the
Borrower is the fee simple owner of the Hotel subject only to the Permitted
Encumbrances.
4.7 Title Exceptions. Copies of all documents creating exceptions to
the Title Policy.
4.8 Survey. Three (3) copies of a recent survey of the Land (the
"Survey") prepared by a registered land surveyor acceptable to Bank and
certified to Bank, the Title Company, and Borrower. Such survey shall show: (a)
all boundaries of the Land with courses and distances indicated including chord
bearings and arc and chord distances for all curves, (b) dimensions and
locations of all existing improvements and of all easements, whether recorded or
unrecorded, private drives, roadways, encroachments, utility and transmission
lines, governmental regulation and jurisdictional lines, building restriction
lines established by zoning regulations or private covenants and restrictions,
whether recorded or unrecorded, (c) the distances to, and names of the nearest
intersecting streets, (d) a narrative metes and bounds legal description of the
boundary of the Land, (e) the area of the Land and the Hotel and any
Improvements thereon, (f) a certification as to the applicable flood zone(s) for
the Land; and if the subject property contains more than one Flood Zone
Designation, the boundary line(s) between the Flood Zone Designated Areas, (g) a
statement as to access to or from the Hotel, (h) the date of the survey and the
surveyor's registration number and seal, (i) other facts in any way affecting
the Land, (j) a certification that the survey was made in accordance with the
requirements for an ALTA land survey and in accordance with applicable state
law, and (k) such other details as the Bank may request.
4.9 Flood Hazards. Evidence as to whether or not the Land is located
within an area identified as having "special flood hazards" as such term is used
in the Federal Flood Disaster Protection Act of 1973. Such evidence can be the
certification that is required in connection with the survey required herein.
4.10 Flood Hazard Insurance. If all or any part of the Improvements is
to be located in an area having "special flood hazard", a flood insurance policy
naming Bank as a loss payee must be submitted to Bank. Satisfactory evidence of
premium payments must be provided.
4.11 Liability Insurance. Evidence of premium payments of Liability
Insurance meeting the requirements set forth in the Lease shall be provided to
the Bank in accordance with the terms set forth herein and in the Security
Agreement. All Liability Insurance shall be evidenced by policies issued by an
insurance company rated "A-VI" or better by A.M. Best & Co., and licensed to do
business in the state of Georgia. Each such policy is hereinafter referred as an
"Insurance Policy". Each Insurance Policy shall provide that the same shall not
be amended or canceled except after thirty (30) days prior written notice to
Bank, shall insure Bank, as an additional insured and shall list Bank as a loss
payee on casualty coverage for the Land, Hotel and Improvements. Copies of duly
executed certificates of insurance shall be delivered to the Bank no more than
ten (10) days after the effective date of the any Lease and upon the annual
anniversary date thereof and thereafter as may be reasonably requested by the
Bank.
4.12 Property Insurance. Evidence of Property Insurance covering
damages to each Hotel and all personal property and Improvements associated
therewith and meeting the requirements as set forth in the Security Agreement
shall be provided to Bank in accordance with the same terms as set forth in the
requirements for Casualty Insurance in Section 4.11 above.
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4.13 Borrower's Organizational Documents And Resolutions. (i) A
certified copy from the appropriate governmental body of organizational
documents of Borrower, certifying that Borrower is duly organized, validly
existing, and in good standing under the state of its existence, (ii) evidence
that Borrower has the authority under such documents and laws to enter into the
Loan as contemplated by the Loan Documents, and (iii) if applicable, evidence
that Borrower has made all appropriate filings, including without limitation,
qualification to do business in the state where the Land is located, the state
of its organization or domicile, and Florida, necessary to enter into the Loan
and execute the Loan Documents. Additionally, Borrower shall provide (i)
certified resolutions or other corporate documents of Borrower evidencing that
Borrower have taken all requisite corporate action, and received all corporate
approvals necessary to enter into the Loan and execute the Loan Documents, and
(ii) such other documents or writings as Bank may reasonably request.
4.14 Fictitious Name Certificate. If Borrower utilizes or intends to
utilize a fictitious name, a copy of the Fictitious Name Certificate of the
Borrower issued by the Florida Secretary of State and any other jurisdiction in
which such filing is necessary.
4.15 Attorney's Opinion. The written opinions of counsel to Borrower
(with respect to the laws of Florida and the state where the Land is located, if
different), addressed to Bank, acceptable to Bank and Bank's counsel, as to
those matters required by Bank. The attorneys opinion, with respect to the
enforceability of remedies provided in the Loan Documents and related instrument
may be made subject to or as affected by, applicable bankruptcy, moratorium,
reorganization, insolvency or similar laws from time to time in effect affecting
the rights of creditors generally. As to matters of fact, such opinions may be
qualified to the extent of the knowledge of such counsel based upon due inquiry
and reasonable investigation.
4.16 Compliance with Laws and Matters of Record. Satisfactory
documentary evidence that the Land with Improvements, and the intended uses of
the Land, are in compliance with all applicable laws, regulations and ordinances
and private covenants, easements, and conditions of record. Such evidence is
subject to approval by Bank and Bank's counsel and may include letters,
licenses, permits, certificates and other correspondence from the appropriate
Governmental Authorities, opinions of Borrower's counsel or other counsel, and
opinions or certifications from the Architect, or the Engineer. The laws,
regulations and ordinances with which compliance should be evidenced include
without limitation the following: health and environmental protection laws, laws
related to or regulating water management districts, hazardous materials and
substances and storm water drainage, erosion control ordinances, tree and
landscaping ordinances, building codes, land use requirements, threshold
building consultant requirements, the development of regional impact Statutes,
doing business and/or licensing laws and zoning laws (the evidence submitted as
to zoning should include the zoning designation made for the Land, the permitted
uses of the Land under such zoning designation and zoning requirements as to
parking, lot size, ingress, egress and building setbacks).
4.17 Taxes. Evidence that each Hotel is, or will be, separately
assessed for tax purposes and information as to tax parcel identification
numbers, tax rates, estimated tax values and the identities of the taxing
authorities.
4.18 Utilities. Evidence of the availability and suitability of the
water, sewer, telephone, electrical, natural gas, and other utilities needed to
properly service the Hotel in its intended use.
4.19 Plans and Specifications. With respect to Hotels, evidence of the
Plans which include architectural, structural, mechanical, plumbing, electrical
and site development (including storm drainage, utility lines, erosion control
and landscaping).
4.20 Permits. A copy certified by Borrower of evidence of all
applicable permits including, without limitation, the building permit and all
permits pursuant thereto, land use permits, dredge and stormwater discharge
permits (federal and state), and any other permits required for use and
occupation of the Hotel.
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4.21 Engineer's Report. Copies of the report signed by Borrower's
Engineer detailing the results of the engineer's inspection of the Hotel,
certified to the Borrower and Bank.
4.22 Soil Tests. Evidence of a prior report as to soil borings made on
the Land by a soil testing firm satisfactory to Bank or certification in the
Engineers Report as to such soil borings. The report and/or certification shall
include the conclusions and findings of the soil testing firm as to the
suitability of the soil for adequately supporting the improvements.
4.23 Environmental Assessment
a. An environmental assessment of the Land and Improvements
performed at Borrower's expense by a licensed engineer or other environmental
consultant satisfactory to Bank stating whether:
i) the Land is located within any area designated
as a hazardous substance site by any of the Governmental
Authorities;
ii) hazardous or toxic wastes or other materials or
substances, regulated, controlled, or prohibited by any
federal, state or local environmental laws, including but not
limited to asbestos, are located on the Land or Improvements;
and
iii) the Land has been cited or investigated in the
past for any violation of any such laws, regulations, or
ordinances.
b. Receipt of any acceptable environmental audit is a
condition precedent to Bank's obligation under the Commitment and hereunder. If
the environmental assessment shall reveal any condition unacceptable to Bank,
Bank may elect to be relieved of any obligation under the Commitment after
providing written notice to Borrower. If Bank does not elect to terminate the
Commitment, Borrower shall obtain a Phase II audit or conduct other additional
testing, at its sole cost and expense, and Borrower shall promptly conduct such
additional audits and testing and/or complete such remedial action. Bank may
require Borrower to provide evidence that all necessary actions have been taken
to remove any hazardous substance contamination and/or to restore the site to a
condition acceptable to Bank and state and federal governmental agencies.
c. Bank shall use best efforts to keep and maintain matters
set forth in the Environmental Assessment confidential by and among the Bank's
employees, agents, representatives and assigns; excepting, however, when
required by operation of Law to report any matters contained therein to any
governmental agency.
4.24 Leases. Copies of the then existing lease between the tenant for
the Hotel (the "Tenant") and Borrower (the "Tenant Lease"), certified by
Borrower and the respective Tenant to be accurate, complete, unaltered, and
binding.
4.25 Taxpayer Identification Number. Borrower's federal taxpayer
identification number.
4.26 Borrower's Affidavit. An affidavit of Borrower regarding the
absence of any other parties in possession of the Hotel, other than the tenant
under the Primary Lease and the guests of the Hotel (but merely in their
capacity as guests) and such other matters as may be requested by Bank;.
4.27 Fee. A fee equal to one-half of one percent (1/2%) of the actual
disbursements under each Loan shall be due and payable by Borrower to the Bank
at closing or subsequent disbursement.
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4.28 Notice. A copy of a recorded notice stating that all leases
affecting the Hotel, or any portion thereof, prohibit the attachment of
Tenant-related liens.
4.29 Appraisal. A signed copy of an appraisal by an MAI certified
appraiser approved by Bank reflecting the value of the Hotel to be not less than
the amount specified in the Loan Summary.
4.30 Comprehensive Plan. Documentary evidence, satisfactory to Bank and
its counsel, that use and operation of the Hotel are consistent with concurrency
requirements and other applicable provisions of the local comprehensive plan,
local land development regulations, and any other similar requirements
("Comprehensive Plan"). Such evidence may include a certificate from Borrower's
Architect, on a form satisfactory to Bank, certifying to Bank that the use and
operation of the Hotel are consistent with the Comprehensive Plan.
4.31 Facilities for Handicapped. Bank shall have received and approved
evidence, satisfactory to Bank, that the Improvements comply with all legal
requirements regarding access and facilities for handicapped or disabled
persons, including, without limitation, and to the extent applicable, Part V of
the Florida Building Construction Standards Act entitled "Accessibility by
Handicapped Persons" Chapter 553, Fla Stat. (or similar law in other
jurisdictions, if applicable); the Federal Architectural Barriers Act of 1988
(42 U.S.C. 4151, et. seq.), the Fair Housing Amendment Act of 1988 (42 U.S.C.
3601, et. seq.), The Americans With Disabilities Act of 1990 (42 U.S.C. 12101
et. seq.), and The Rehabilitation Act of 1973 (29 U.S.C. 794)
4.32 Reports and Analysis. Such reports and analysis as reasonably
requested by the Bank to establish the financial feasibility of the development,
use and operation of the Hotel as contemplated by the Loan.
4.33 No Defaults. No Default Condition or Default shall exist under the
Loan Documents.
4.34 Request. Bank shall have received Borrower's Request for
Disbursement.
4.35 Tenant Estoppel Certificates and Subordination Agreements. Any
tenant occupying the Hotel, or any portion thereof, or which will occupy the
Hotel, or any portion thereof, shall execute and deliver to Bank a tenant
estoppel certificate and subordination agreement in a form satisfactory to Bank.
The tenant shall also agree to provide the Bank notice and opportunity to cure
any and all defaults of landlord prior to tenant seeking any remedy. The tenant
estoppel certificate shall certify, among other things, the date the tenant
accepted occupancy of the leased premises (if applicable), the absence of any
lease defaults by landlord, the date the tenant commenced rent payments (if
applicable), the lease's material terms, and such other matters as may be
requested by Bank. The tenant estoppel shall also contain the tenant's agreement
to indemnify and hold Bank harmless from any and all losses arising from the
tenant's storage, disposal, releases, spills, or discharges of hazardous waste
on the Land. The subordination agreement shall provide, among other things, that
the tenant's right, title and interest under the lease is subordinate to the
lien of Bank's Assignment of Leases and Rents, Security Agreement and Assignment
of FF&E Account.
4.36 Miscellaneous. All other Loan Documents or items that are
customarily provided in loan transactions of this type required by Bank and all
other loan documents or items set forth in the Commitment.
ARTICLE V
Borrower's Covenants and Agreements As To Each Loan
5.1 Payment and Performance. Borrower will pay when due all sums owing
to Bank under all of the Note(s), this Master Loan Agreement, the Assignment of
Rents and the other Loan Documents, and perform all obligations as outlined or
referenced therein.
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5.2 Organization; Powers. CNL Hospitality Properties, Inc., has been
duly formed and is validly existing as a corporation under the laws of the State
of Maryland and CNL Hospitality Partners, LP, has been duly formed and is
validly existing as a limited partnership under the laws of the State of
Maryland and each has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement and other Loan Documents and to
carry on its business as now conducted and as proposed to be conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a material adverse effect.
5.3 Authorization;Enforceability. The Loan is within the Borrower's
powers and has been duly authorized by all necessary action. The Security
Agreement and the other Loan Documents have been duly executed and delivered by
the Borrower and constitute the legal, valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent, conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
5.4 Further Assurances. Borrower will promptly do any act and execute
any additional documents reasonably required by Bank to secure the Loan, to
confirm or perfect the lien of the Assignment of Leases and Rents or any other
Loan Documents or to comply with the Commitment, including, but not limited to,
additional financing statements or continuation statements, new or replacement
notes and/or Loan Documents and agreements supplementing, extending or otherwise
modifying the Loan Documents and certificates as to the amount of the
indebtedness evidenced by the Note from time to time.
5.5 Inspection. Borrower will permit Bank and its authorized agents to
enter upon the Hotel during normal working hours and as often as Bank desires,
for the purpose of inspecting the Hotel or the Improvements. Failure of Bank or
its authorized agents to discover deficiencies in the Improvements shall not
make Bank or its agent liable to Borrower or to any other person on account of
such failure, nor shall any prior failure constitute a waiver of Bank's rights.
Borrower specifically acknowledges that all inspections undertaken by Bank or
its agent shall be for the sole benefit of Bank and not for Borrower, or any
third party. The costs of all inspections shall be at Borrower's expense;
provided, however, that as long as there is no Default, such cost shall not
exceed $500.00 for each Loan.
5.6 Fees and Expenses. Whether or not the Loan is made, or all Loan
proceeds disbursed hereunder, Borrower agrees to pay all expenses incurred by
Bank, or by Borrower in order to meet Bank's requirements, in connection with
the Loan, including without limitation, commitment and renewal fees or deposits
to bank, fees for appraisal, reappraisal survey, recording, title insurance,
builder's risk and other insurance premiums, property taxes, intangible taxes,
documentary stamp taxes, the design architect's and Architect's fees, the
Engineer's fees, the Consultant's fees, and such reasonable legal fees and costs
incurred by Bank in connection with the making of the Loan, the enforcement of
bank's rights under the Loan Documents, or in connection with litigation or
threatened litigation by a third party which arises because Bank made this Loan.
Any such amounts paid by Bank shall constitute part of the debt which is secured
by the Loan Documents, and shall be due and payable upon demand.
5.7 Use of Loan Funds. Borrower shall use all Loan proceeds disbursed
to Borrower solely in payment of costs incurred in connection with acquiring the
Hotel, in accordance with the Loan Summary. Loan funds from one Hotel project
shall not be utilized for any other project under this Master Loan Agreement.
5.8 Insurance. Borrower covenants to maintain insurance as required
herein and in the Security Agreement.
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5.9 Taxes and Insurance. Upon the request of Bank, Borrower shall
submit to Bank such receipts and other statements which shall evidence, to the
satisfaction of Bank, that all taxes, assessments and insurance premiums have
been paid in full.
5.10 Availability of Utilities. All utility services necessary for the
Improvements and the operation thereof for their intended purposes are presently
available through presently existing public or unencumbered private easements or
rights-of-ways in accordance with validly executed and enforceable utility
service agreements between Borrower and the provider of each of such services
(the "Utility Service Agreements") at the boundaries of the Land, including but
not limited to, water, storms and sanitary sewer, gas, electric and telephone
facilities, and all such utilities are non-interruptible. Borrower shall also
provide Bank with copies of all Utility Service Agreements.
5.11 Additional Construction. Borrower shall not construct or permit
the construction of any improvements on the Land other than those Improvements
approved in writing by Bank.
5.12 Financial Statements. Borrower shall submit annual audit reports
and semi-annual unaudited company prepared financial statements to the Bank.
Such statements shall include, at a minimum: a balance sheet; an income and
expense statement; a statement showing contingent liabilities; detailed cash
flow statements for each project or entity in which Borrower has an interest and
on which Bank has advanced funds under a Loan; and any supporting schedules or
documentation which Bank may require. Detailed cash flow statements shall
include, as applicable: the project name; location; percentage of Borrower's
ownership interest; leasing status; net operating income; current loan balance;
debt service; source of any operating deficit; amount and beneficiary of any
cash distributions; and the amount of cash invested in or received from that
enterprise. In addition detailed cash flow projects for the next fiscal year
(twelve month period) for each Hotel or entity shall be submitted. Each
unaudited statement must contain a certification to Bank of the statement's
accuracy and completeness signed by the highest ranking financial officer of the
Borrower. Annual statements of business entities (including corporation and
partnership) shall be audited and bear the unqualified opinion of an acceptable
certified public accountant. The annual statements shall be submitted no later
than April 30th of each year of the Loan term. Interim statements shall be
submitted within 30 days of Bank's request.
5.13 Appraisals. In addition to the appraisals required by Bank prior
to closing of the Loan, updated appraisals shall be prepared at Borrower's
expense when requested by Bank or when required in connection with any extension
options in the Note. Such appraisals shall be prepared in accordance with
written instructions from Bank and by a professional appraiser selected and
engaged by Bank. Borrower shall cooperate fully with the appraisal process and
shall allow the appraiser reasonable access to the Hotel and its tenants.
5.14 Hazardous Substances. Concurrently with the execution hereof,
Borrower warrants and represents to Bank that, to the best of Borrower's
knowledge, the Hotel and all real property, now or previously owned by Borrower
during the period of Borrower's ownership, and are not now being used in
violation of any federal, state or local environmental law, ordinance or
regulation; that no proceedings have been commenced, or notices(s) received,
concerning any alleged violation of any such environmental law, ordinance or
regulation. Borrower covenants that it shall not permit any such materials to be
brought onto the Hotel or any other real property owned by Borrower, or if so
brought or found located thereon, shall be immediately removed with proper
disposal, and all required environmental cleanup procedures shall be diligently
undertaken pursuant to all applicable laws, ordinances and regulations. Borrower
herein indemnifies and holds Bank harmless against any loss, claim or costs
incurred by Bank in connection with the warranties granted herein. Borrower's
obligations hereunder shall survive any proceeding to enforce Bank's rights
under the Loan Documents.
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At any time deemed necessary by Bank, but no more frequently than once
each calendar year, the Bank may in its reasonable discretion, at its election,
obtain one or more environmental assessments of the Land prepared by a
geohydrologist, an independent engineer, or other qualified consultant or expert
approved by Bank evaluating or confirming (i) whether any Hazardous Substances
are present in the soil or water at the Land and (ii) whether the use and
operation of the Land complies with all applicable Environmental Laws relating
to air quality, environmental control, release of oil, hazardous materials,
hazardous wastes and hazardous substances, and any and all other applicable
environmental laws. Environmental assessments may include detailed visual
inspection as to the Land including, without limitation, any and all storage
areas, storage tanks, drains, dry xxxxx, and leasing areas and the taking of
soil samples, surface water samples, and ground water samples, as well as such
other investigations or analyses as are necessary or appropriate for a complete
determination of the compliance of the Land and the use and operation thereof
with all applicable Environmental Laws. Such environmental assessment shall be
the sole cost and expense of Borrower.
In the event that it is determined that additional tests and/or
remediation are necessary as a result of the aforesaid assessments, or in the
event such additional testing or remediation is recommended by the aforesaid
assessments, Borrower agrees to immediately perform the tests or undertake the
remediation as recommended. In the event contamination or other environmental
problem is found on the Land and Borrower does not promptly undertake the
remediation as recommended, Borrower shall be in default hereunder.
Bank shall use best efforts to keep and maintain matters set forth in
any hazardous substances notices and/or environmental assessments confidential
by and among the Bank's employees, agents, representatives and assigns;
excepting, however, when required by operation of law to report any such matters
contained therein to any governmental agency.
5.15 Leases Affecting Hotel. Borrower shall not, without the express
prior written consent of Bank, enter into any lease affecting the Hotel or any
part thereof (including the Primary Lease), or amend, modify, extend, terminate
or cancel, accept the surrender of any portion of the Hotel which is the subject
of a lease (except by expiration of such lease in accordance with its terms),
subordinate, accelerate the payment of rent as to, or change the terms of any
renewal option of any lease now existing or hereafter created, or permit or
suffer an assignment or sublease thereof, except as set out herein. Any lease or
any modification, extension, or renewal of any lease, affecting or relating to
all or any portion of a Hotel shall be subject to Bank's prior written approval.
Copies of all leases or modifications, renewals, or extensions thereto, approved
by the Bank shall be certified as accurate and complete by Borrower and Tenant
and delivered to the Bank within fifteen (15) days of execution.
5.16 Assignment of Contracts. As additional security for the Loan and
for the performance by Borrower of all of its obligations hereunder Borrower
hereby assigns to Bank all of Borrower's interest in any and all contracts,
agreements, permits, licenses, approvals, or other documents or writing relating
to the leasing, management or operation of the Improvements. This assignment
shall not, however, be deemed to impose upon Bank any of Borrower's obligations
under any such contract. Borrower will fulfill the obligations of Borrower under
all contracts, enforce the performance thereof and give immediate notice to Bank
of any material default by the other party to such contract. Further, Borrower,
will not, without the prior written consent of Bank (i) materially modify, or
amend the terms of any material contract, or (ii) waive or release the
performance of any material obligation to be performed by the other party to any
such contract.
5.17 Subordinate Financing. Borrower shall not permit there to exist
nor shall Borrower obtain any subordinate financing of the Hotel, or any part
thereof, or any other property granted as security for the Loan.
5.18 Transfer of Property or Borrower. Borrower shall not permit any
change in its ownership, or the ownership of its general partners, the nature
and operation of its business or the nature and character of Borrower or the
Hotel, nor shall Borrower sell, assign, transfer, hypothecate or dispose of all
or any portion of the Hotel except as permitted hereby, without the prior
written consent of Bank, which consent shall be
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withheld or granted in Bank's sole and absolute discretion. Notwithstanding the
foregoing, the sale or disposition of shares or units of Borrower sold or
transferred pursuant to a registration made with the Securities and Exchange
Commission pursuant to the Securities and Exchange Act of 1934 shall be deemed a
permissible transaction.
5.19 Americans With Disabilities Act. Borrower covenants and agrees
that, during the term of the Loan, the Hotel will be in full compliance with the
Americans With Disabilities Act ("ADA" of July 26, 1990, 42 U.S.C Section 12191,
et. seq.) as amended from time to time, and the regulations promulgated pursuant
thereto. Borrower shall be solely responsible for all ADA compliance costs
including without limitation, reasonable attorneys fees and litigation costs,
which responsibility shall survive the repayment of the Loan and foreclosure of
the Hotel.
ARTICLE VI
Borrower's Representations and Warranties As to Each Loan
6.1 Representations and Warranties. Borrower hereby represents and
warrants to Bank that:
a. Representations and Warranties in Loan Documents. All of
the representations and warranties contained in the Assignment of Leases and
Rents, the Agreement Not to Encumber and the other Loan Documents are true and
correct and are incorporated herein by reference as if set out in full.
b. Other Financing. Borrower has not (i) received any other
financing for the acquisition of the Hotel existing as of the date of the Loan
for such Hotel, or (ii) received any other financing of Improvements, equipment
or other facilities used in conjunction with each Hotel.
c. Governmental Requirements and Other Requirements, To
Borrower's knowledge, after due inquiry, the use and operation of the Hotel does
and shall comply with all covenants, conditions and restrictions affecting the
Land or any portion thereof; and do and shall comply with all Governmental
Requirements.
d. Use of the Hotel. To Borrower's knowledge there is no (i)
plan, study or effort by any Governmental Authority or any nongovernmental
person or agency which may adversely affect the current or planned use of the
Hotel, or (ii) any intended or proposed Governmental Requirement (including, but
not limited to, zoning changes) which may adversely affect the current or
planned use of the Hotel.
e. Moratorium. There is no moratorium or like governmental
order or restriction now in effect with respect to the Hotel and, to the best of
Borrower's knowledge, no moratorium or similar ordinance or restriction is now
contemplated.
f. Permits. To Borrower's knowledge, after due inquiry, prior
to the closing on each Loan, all permits, approvals and consents of Governmental
Authorities and public and private utilities having jurisdiction necessary in
connection with such Hotel shall have been issued and be in good standing.
g. Condition of Hotel. To Borrower's knowledge, after due
inquiry, at time of closing of each Loan, (i) no defect or condition of the
Hotel Improvements, Land or the soil, ground water or geology of or under the
Land and (ii) no other agreement, arrangement, understanding or conditions
whatsoever, exists which will delay or impair the use, or the operation of Hotel
for its intended purpose.
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h. Surveys. The Survey, and all plot plans and other documents
heretofore furnished by Borrower to Bank with respect to Land and Improvements
are accurate and complete as of their respective dates. To Borrower's knowledge,
after due inquiry (which inquiry will include review of the Survey and an
inspection of the Land) there are no encroachments onto the Land and no
Improvements on the Land encroach onto any adjoining property.
i. Sale of Securities. Borrower has not instituted, caused to
be instituted or been a party to and, to the best of Borrower's knowledge, there
has not been any public offering with respect to the Land and Improvements, or
either, within the meaning of the Securities Act of 1933 and the Securities
Exchange Act of 1934 ("Securities Laws") unless the same comply with all Laws,
including but not limited to the Securities laws, and Borrower promptly and
timely provides a copy of all materials filed with any Governmental Authority in
conjunction therewith.
j. Reliance on Representations. Borrower acknowledges that
Bank has relied upon the Borrower's representations and is not charged with any
knowledge contrary thereto that may be received by an examination of the public
records wherein the Land is located or that may have been received by any
officer, director, agent, employee of shareholder of Bank.
ARTICLE VII
Events of Default
7.1 Default. The occurrence of any one or more of the following events
(time being of the essence as to this Master Loan Agreement and all of its
provisions) with respect to one or more Loans constitutes a "Default" by
Borrower under this Master Loan Agreement, and at the option of Bank, under the
other Loan Documents for the respective Loan or any other Loan:
a. Scheduled Payment. Borrower's failure to make any payment
required under any of the Note(s) when due.
b. Monetary Default. Borrower's failure to make any other
payment required by this Master Loan Agreement or the other Loan Documents,
within ten (10) days of the due date, which payment is not received by Bank
within fifteen (15) days of receipt of written notice of such failure from Bank.
c. Other. Borrower's failure to perform any other obligation
imposed upon Borrower by this Master Loan Agreement or any other Loan Document
within the time period specified, or as may be specified by Bank, if in the sole
opinion of Bank such Default is curable, should such failure not be cured by
Borrower within thirty (30) days of receipt of written notice from the Bank, so
long as this thirty (30) day period does not conflict with any other provision
in the Loan Documents. This provision shall not be construed to provide Borrower
with any grace period in complying with any obligations imposed on Borrower by
the terms of the Loan Documents.
d. Representation. Any representation or warranty of Borrower
contained in this Master Loan Agreement or in any certificate delivered pursuant
hereto, or in any other instrument or statement furnished in connection
herewith, proves to be incorrect or misleading in any adverse respect as of the
time when the same shall have been made, including, without limitation, any and
all financial statements, operating statements, and schedules attached thereto,
furnished by Borrower to Bank or pursuant to any provision of this Master Loan
Agreement, provided such representation or warranty is made accurate by Borrower
within thirty (30) days of receipt of written notice from Bank.
e. Bankruptcy. Borrower or any general partner of Borrower or
any affiliate (i) files a voluntary petition in bankruptcy or a petition or
answer seeking or acquiescing in any reorganization or for an arrangement,
composition, readjustment, liquidation, dissolution, or similar relief for
itself pursuant to the
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United States Bankruptcy Code or any similar law or regulation, federal or
state, relating to any relief for debtors, now or hereafter in effect; or (ii)
makes an assignment for the benefit of creditors or admits in writing its
inability to pay or fails to pay its debts as they become due; or (iii) suspends
payment of its obligations or take any action in furtherance of the foregoing;
or (iv) consents to or acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator or other similar official of Borrower, a
general partner of Borrower, for all or any part of the Hotel or other assets of
such party, or either; or (v) has filed against it an involuntary petition,
arrangement, composition, readjustment, liquidation dissolution, or an answer
proposing an adjudication of it as a bankruptcy or insolvent, or is subject to
reorganization pursuant to the United States Bankruptcy Code, an action seeking
to appoint a trustee, receiver, custodian, or conservator or liquidator, or any
similar law, federal or state, now or hereinafter in effect, and such action is
approved by any court of competent jurisdiction and the order approving the same
shall not be vacated or stayed within sixty (60) days from entry; or (vi)
consents to the filing of any such petition or answer, or shall fail to deny the
material allegations of the same in a timely manner.
f. Judgments. (1) A final judgment other than a final judgment
in connection with any condemnation, and including any judgment or other final
determination of any contest permitted by the Assignment of Rent, is entered
against Borrower, any Guarantor, or any general partner of Borrower, that (i)
adversely affects the value, use or operation of any Hotel, or any portion
thereof, in Bank's sole judgment, or (ii) adversely affects, or may adversely
affect, the validity, enforceability or priority of the lien or security
interest created by the any Loan Document in Bank's sole judgment, or both; or
(2) execution or other final process issues thereon with respect to any Hotel,
or any portion thereof, and (3) Borrower or any general partner of Borrower,
does not discharge the same or provide for its discharge in accordance with its
terms, or procure a stay of execution thereon, in any event within thirty (30)
days from entry, or Borrower shall not, within such period or such longer period
during which execution on such judgment shall have been entered, and cause its
execution to be stayed during such appeal, or if on appeal such order, decree or
process shall be affirmed and Borrower shall not discharge such judgment
provided for its discharge in accordance with its terms within sixty (60) days
after the entry of such order or decree or affirmance, or if any stay of
execution on appeal is released or otherwise discharged.
g. Liens. Any federal, state or local tax lien or any claim of
lien for labor or materials or any other lien or encumbrances of any nature
whatsoever is recorded against Borrower or any Hotel, or any part thereof, and
is not removed by payment or transferred to substitute security in the manner
provided by law, within thirty (30) days after it is recorded in accordance with
applicable law, or is not contested by Borrower in the manner permitted by loan
Documents.
h. Leases. Borrower's default in the performance of its
obligations as lessor under any lease of all or any portion of the Hotel,
including the Primary Lease, which default could result, in Bank's sole
judgment, in the termination of said lease provided such default is not cured by
Borrower within thirty (30) days after receipt of written notice from Bank.
i. Other Notes or Mortgages. Borrower's default in the
performance or payment of Borrower's obligations under any other note or under
any mortgage encumbering all or any part of the Hotel, if the other mortgage is
permitted by the Bank, whether such other note or mortgage is held by Bank or by
any other party, provided such default is not cured by Borrower within thirty
(30) days after receipt of written notice from the Bank.
j. Borrower Default Under Loan Documents. Borrower's default
in the payment or performance of any of Borrower's obligations under any of the
Loan Documents pertaining to any Loan, including this Master Loan Agreement and
any amendments, riders or Loan Summaries attached hereto, provided such default
is not cured by Borrower within thirty (30) days of receipt of written notice
from Bank, excepting, however, if this thirty (30) day period should conflict
with any other notice and opportunity to cure provision contained in the Loan
Documents.
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k. Borrower's Continued Existence. Borrower shall cease to
exist or to be qualified to do or transact business in the state in which the
Hotel is located or shall be dissolved or shall be a party to a merger or
consolidation, or shall sell all or substantially all of its assets without
providing thirty (30) days written notice to the Bank in the event of any
voluntary dissolution, mergers or consolidations or after thirty (30) days
written notice from Bank in the event of involuntary merger, dissolution or
consolidation.
l. Stock in Borrower/Change in Partners. If any legal or
beneficial interest, including, but not limited to, shares of stock of Borrower
are issued, sold transferred, conveyed, assigned, mortgaged, pledged, or
otherwise disposed of so as to result in change of control of Borrower, whether
voluntarily or by operation of law, other than a sale by CNL Hospitality
Partners LP of limited partnership interests in itself, and whether with or
without consideration, or any agreement for any of the foregoing is entered
into; or, of any general partnership interest or other equity interest in
Borrower is sold, transferred, assigned, conveyed, mortgaged, pledged, or
otherwise disposed or, whether voluntarily or by operation of law, and whether
with or without consideration, or any agreement for any of the foregoing is
entered into, or any general partner of Borrower withdraws from the partnership;
unless otherwise permitted or approved by the Bank.
m. Transfer of Property or Ownership. Any sale, conveyance,
transfer, assignment, or other disposition of all or any part of any Hotel.
n. False Statement. Any statement or representation of
Borrower contained in the loan application or any financial statements or other
materials furnished to Bank or any other lender prior or subsequent to the
making of the Loan secured hereby are discovered to have been false or incorrect
or incomplete, which statement or representation is not made accurate within
thirty (30) days of receipt of written notice from Bank.
o. Default Under Indemnity. Borrower shall default under any
obligation imposed by any indemnity whether contained within any of the Loan
Documents, (including, without limitation, the Hazardous Substance Certificate
and Indemnification Agreement), or otherwise, which default is not cured by
Borrower within thirty (30) days of receipt of written notice from Bank.
p. Cross Default. Any default by Borrower under any other
documents or instruments evidencing any other loans by Bank to Borrower (or any
one if more than one Borrower) or in any mortgages or other collateral documents
securing such loans, which default is not cured by Borrower within thirty (30)
days of receipt of written notice from Bank.
q. Non-Compliance with the Plans and Specifications. Failure
of any of the Improvements to comply with the requirements of any Governmental
authority unless Borrower, after thirty (30) days notice, undertakes and
diligently pursues the correction of such failure.
r. Non-Payment of Debts. Borrower is generally not paying its
debts as such debts become due, provided such debts are not paid and evidence of
such payment provided to Bank within thirty (30) days of receipt of written
notice from Bank.
s. Securities Laws Violation. The assertion of any violation
by Borrower of the 1933 Securities Act, 1934 Securities Act or the Blue Sky Laws
by any Governmental Authorities or the institution of any securities litigation
not dismissed within sixty (60) days of the commencement of same.
t. Miscellaneous. If at any time Bank shall reasonably deem
itself insecure or shall determine that there has been a material adverse change
in the financial condition or prospect of Borrower, provided such change is not
cured by Borrower to Bank's reasonable satisfaction within sixty (60) days of
receipt of written notice from Bank.
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ARTICLE VIII
Bank's Rights and Remedies
The following rights and remedies are available to Bank as to all Loans
then outstanding and any Hotels pertaining thereto:
8.1 Acceleration. Upon the occurrence of a Default, the entire unpaid
principal balance of the Loans and all accrued but unpaid interest thereon and
any costs or expenses then due to Bank and any and all other obligations of
Borrower to Bank, shall, at the option of Bank and without notice to Borrower,
become immediately due and payable and, Bank shall have no further obligation to
make any advance, disbursement or Loan under this Master Loan Agreement.
8.2 Remedies. Upon the occurrence of a Default, Bank may avail itself
of any and all rights and remedies available at law or in equity or as provided
under this Master Loan Agreement or any of the other Loan Documents.
8.3 Action to Protect Bank's Interest and Granting Mortgage. From and
after the occurrence of a Default, the Bank shall be entitled to pursue any and
all remedies provided in the Loan Documents to protect the Bank's interest. In
addition to all remedies of Bank provided in this Agreement and in the Loan
Documents, upon a Default within twenty (20) days, Borrower shall execute a
Mortgage for each and every Hotel heretofore or hereafter financed in whole or
in part by the Bank pursuant to this Loan Agreement. Such Mortgage shall be upon
terms as set forth in Exhibit attached hereto. In the event Borrower fails or
refuses to execute any of said Mortgages, Borrower does hereby irrevocably
appoint and grant to the Bank power of attorney for Borrower to act for Borrower
in regard to the Bank's request including the right to execute any and all such
Mortgages and documents relating thereto, to record the same upon the public
records and to do all things necessary to create a first mortgage lien upon each
respective Hotel. Borrower shall be responsible for all cost and expenses
related to such Mortgages including but not limited to recording, documentary,
or other taxes, and a mortgage title insurance policy insuring Bank's mortgage.
8.4 Special Remedy. In the event either the Primary Lease or the
"Franchise Agreement" entered into between tenant under the Primary Lease and a
reputable hotel operator and franchisor, shall be terminated for any reason
whatsoever, in addition to all other remedies available to Bank under the Loan
Documents, Borrower shall, within twenty (20) days of receiving notice from
Bank, execute a Mortgage securing the Note with respect to such Hotel for which
the Primary Lease or Franchise Agreement has terminated unless Borrower has
provided the Lender a new Primary Lease or Franchise Agreement upon
substantially similar terms as exist at the time of making the Loan for such
Hotel and meeting the requirements of this Master Loan Agreement (hereinafter a
"Qualified Lease" and "Qualified Franchisor" respectively), in the reasonable
judgment of Bank. Such Mortgage shall be upon terms as set forth in Exhibit
_____ attached hereto. In the event Borrower fails or refuses to execute said
Mortgage(s), Borrower does hereby irrevocably appoint and grant to the Bank
power of attorney for Borrower to act for Borrower in regard to the Bank's
request including the right to execute any such Mortgage(s) and documents
relating thereto, to record the same upon the public records and to do all
things necessary to create a first mortgage lien upon said Hotel(s). Borrower
shall be responsible for all cost and expenses related to such Mortgage(s)
including but not limited to recording, documentary, or other taxes, and a
mortgage title insurance policy insuring Bank's mortgage. Bank agrees to release
the lien created by any Mortgage made pursuant to this Section 8.4 if Borrower
is not in Default and Borrower has or subsequently obtains a Qualified Lease
and/or Qualified Franchisor.
8.5 Remedies Cumulative; Nonwaiver. All remedies of Bank provided for
herein or in the other Loan Documents for any Loan are cumulative and shall be
in addition to any and all other rights and remedies provided for or available
under the other Loan Documents, at law or in equity. The exercise of any right
or remedy by Bank hereunder shall not in any way constitute a cure or waiver of
a Default Condition or a Default hereunder or under the Loan Documents, or all
remedies of Bank provided for herein or in the other Loan
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Documents for any Loan are cumulative and shall be in addition to any and all
other rights and remedies provided for or available under the other Loan
Documents, at law or in equity. The exercise of any right or remedy by Bank
hereunder shall not in any way constitute a cure or waiver of a Default
Condition or a Default hereunder or under the Loan Documents, or
8.6 Remedies Cumulative; Nonwaiver. All remedies of Bank provided for
herein or in the other Loan Documents for any Loan are cumulative and shall be
in addition to any and all other rights and remedies provided for or available
under the other Loan Documents, at law or in equity. The exercise of any right
or remedy by Bank hereunder shall not in any way constitute a cure or waiver of
a Default Condition or a Default hereunder or under the Loan Documents, or
invalidate an act done pursuant to any notice of the occurrence of a Default
Condition or a Default hereunder or under the Loan Documents, or invalidate any
act done pursuant to any notice of the occurrence of a Default Condition or
Default, or prejudice Bank in the exercise of said rights, Bank realizes all
amounts owed to it under the Loan Documents.
8.7 No Liability of Bank. Whether or not Bank elects to employ any or
all remedies available to it in the event of an occurrence of a Default
Condition or Default, Bank shall not be liable for the construction of or
failure to construct or complete or protect the Improvements or for payment of
any expense incurred in connection with the exercise or any remedy available to
Bank or for the construction or Completion of the Improvements or for the
performance or nonperformance of any other obligation of Borrower.
8.8 Security Interest. It is understood and agreed that Bank shall have
and enjoy and is hereby granted a lien on, and a security interest in, all real
and personal property and fixtures described in the Security Agreement and
Assignment of Leases and Rents, and including without limitation, any and all
materials of Borrower (stored on-site or off-site) reserves, deferred payments,
deposits or advance payments for materials (stored on-site or off-site)
undisbursed Loan proceeds, insurance refunds, impound accounts, refunds for
overpayment of any kind, and such lien and security interest shall constitute
additional security for the debt of Borrower under the Loan Documents (including
but not limited to the FF&E Account), and Bank shall have and possess any and
all rights and remedies of a secured party provided by law with respect to
enforcement of and recovery on its security interest on such items and amounts.
In the event of a conflict between this paragraph and any security interest
granted pursuant to the Assignment of Leases and Rents, the terms and provisions
contained in the Assignment of Leases and Rents shall control.
ARTICLE IX
General Conditions
The following conditions shall be applicable throughout the term of
this Master Loan Agreement:
9.1 Loan Summary. For any Loan made pursuant to this Master Loan
Agreement to be effective, Borrower must complete and execute the Loan Summary
pertaining thereto and the same must be accepted by Bank in its sole discretion
and executed by the Bank, and Borrower must comply with all the applicable terms
and conditions hereof including, without limitation, the execution and delivery
of the Loan Documents which pertain to the Loan.
9.2 Waivers. No waiver of any Default Condition or Default or breach by
Borrower hereunder shall be implied from any delay or omissions by Bank to take
action on account of such Default Condition or Default, and no express waiver
shall affect any Default Condition or Default other than the Default specified
in the waiver and it shall be operative only for the time and to the extent
therein stated. Waivers or any covenants, terms or conditions contained herein
must be in writing and shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition. The consent or approval by Bank
to or of any act by Borrower requiring further consent or approval shall not be
deemed to waive or render unnecessary the
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consent or approval to or of any subsequent or similar act. No single or partial
exercise of any right or remedy of Bank hereunder shall preclude any further
exercise thereof or the exercise of any other or different right or remedy.
9.3 Benefit. This Master Loan Agreement is made and entered into for
the sole protection and benefit of Bank and Borrower, their successors and
assigns, and no other person or persons have any right to action hereon or
rights to the Loan all proceeds at any time, nor shall Bank owe any duty
whatsoever to any claimant for labor or services performed or material furnished
in connection with the Hotel, or to apply any undisbursed portion of the Loan to
the payment of any such claim, or to exercise any right or power of Bank
hereunder or arising from any Default Condition or Default by Borrower.
9.4 Assignment. The terms hereof shall be binding upon and inure to the
benefit of the heirs, successors, assigns, and personal representatives of the
parties hereto; provided, however, that Borrower shall not assign this Master
Loan Agreement or any of its rights, interests, duties or obligations hereunder
or any Loan proceeds or other moneys to be advanced hereunder in whole or in
part without the prior written consent of Bank and that any such assignment
(whether voluntary or by operation of law) without said consent shall be void.
It is expressly recognized and agreed that Bank may assign this Master Loan
Agreement, the Agreement Not to Encumber, the Assignment of Leases and Rents and
any other Loan Documents in whole or in part, to any other person, firm, or
legal entity provided that all of the provisions hereof shall continue in full
force and effect and, in the event of such assignment, Bank shall thereafter be
relieved of all liability under the Loan Documents arising from and after the
date of such assignment and any Loan disbursements made by any assignee shall be
deemed made in pursuant and not in modification hereof and shall be secured by
the Assignment of Leases and Rents and any other Loan Documents.
9.5 Amendments. This Master Loan Agreement shall not be amended except
by a written instrument signed by all parties hereto.
9.6 Terms. Whenever the context and construction so require, all words
used in the singular number herein shall be deemed to have been used in the
plural, and vice versa, and the masculine gender shall include the feminine and
neuter and the neuter shall include the masculine and feminine.
9.7 Post-Closing Environmental Assessments. In addition to the
environmental report required to be furnished to Bank as a condition precedent
to closing, Bank may, but no more frequently than annually, at Bank's sole
option, and at the Borrower's expense, require an environmental assessment or
updated assessment conforming to Bank's Guidance Document, from a reputable
environmental consultant satisfactory to Bank as to whether the Hotel, or any
portion thereof, has been or is presently being used for the handling, storage,
transportation or disposal of hazardous or toxic materials. If such report
indicates such past, or present use, handling, storage, transportation or
disposal of hazardous or toxic materials, such shall be deemed to constitute a
default by the Borrower under the Loan Documents.
9.8 Cross-Default/Cross Collateral. A default hereunder or under any of
the documents evidencing or securing a Loan shall constitute an event of default
under any other Loan or other indebtedness (now or hereafter existing) of
Borrower to Bank. Any default under any document evidencing or securing such
other indebtedness shall constitute a default hereunder.
9.9 Anti-Coercion Notice. The insurance laws of the State of Florida
provide that Bank may not require Borrower to take insurance through any
particular insurance agent or company to insure the Land or Improvements.
Borrower, subject to the rules adopted by the Florida Insurance Commissions, has
the right to have insurance placed with an insurance agent or company of
Borrower's choice, provided the company meets Bank's requirements. Bank has the
right to designate reasonable financial requirements as to the company and the
adequacy of the insurance coverage. Borrower shall also execute any documents
required by similar laws of any other state which may be applicable.
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9.10 Entire Agreement. This Master Loan Agreement, when accepted, shall
constitute the entire agreement between Borrower and Bank, and it may not be
altered or amended unless agreed to in writing by Bank and Borrower.
9.11 Indemnification.
Borrower shall indemnify and hold Bank and its directors,
officers, agent, employees, and attorneys harmless from all liability, loss
expense or damage of any kind or nature, including, without limitation, any
suits, proceedings, claims, demands, or damages (including attorney's fees and
costs paid or incurred in connection therewith at both trial and appellate
levels), incurred or arising by reason of:
a. This Master Loan Agreement or the making of a Loan
(except for liability, loss, expense, or damage
arising from the willful misconduct of Bank);
b. Any claim or action for the payment of any brokerage
commissions or fees which may be claimed to be
payable in connection with this Master Loan
Agreement; and
c. The past, present or future handling, storage,
transportation, or disposal of hazardous substances
upon the Hotel, or any portion thereof.
These indemnifications shall survive the full payment and performance of the
obligations of the Borrower under the Loan Documents.
9.12 Choice of Law. The Loans, and all documents executed in connection
therewith shall be governed by and construed in accordance with Florida law
except with respect to the enforcement of the Assignment of Leases and Rents,
the Security Agreement, the Financing Statements and the Agreement Not To
Encumber, which shall be governed by the laws of the State where the Hotel is
located, and Borrower shall execute such instruments necessary in connection
therewith.
9.13 Controlling Agreement. The parties intend to conform strictly to
the applicable usury laws. All agreements between Bank and Borrower (or any
other party liable with respect to any indebtedness under the Loan Documents)
are hereby limited by the provision of this paragraph which shall override and
control all such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or contingency (including
but not limited to prepayment default, demand for payment or acceleration of the
maturity of any obligation), shall the interest contracted for, charged or
received under this Master Loan Agreement or otherwise exceed the maximum amount
permissible under applicable law. If, from any possible construction of any
document interest would otherwise be payable to bank in excess of the maximum
lawful amount any such construction shall be subject to the provisions of this
paragraph and such document shall be automatically reformed and the interest
payable to Bank shall be automatically reduced to the maximum amount permitted
under applicable law, without the necessity of execution of any amendment or new
document. If Bank shall ever receive anything of value which is characterized as
interest under applicable law and which would apart from this provisions be in
excess of the maximum lawful amount, an amount equal to the amount which would
have been excessive interest shall be applied to the reduction of the principal
amount owing in the inverse order of its maturity and to the payment of
interest, or refunded to Borrower if and to the extent such amount which would
have been excessive exceeds unpaid principal. The right to accelerate maturity
of any indebtedness does not include the right to accelerate any interest which
has not otherwise accrued on the date of such acceleration, and Bank does not
intend to charge or receive any unearned interest in the event of acceleration.
All interest paid or agreed to be paid to Bank shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
stated term (including any renewal or extension) of such indebtedness so that
the amount of interest on account of such indebtedness does not exceed the
maximum permitted by applicable law.
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9.14 NOTICE TO ALL BORROWERS AND OTHER OBLIGORS, FINAL AGREEMENT. The
following notice is incorporated in this Master Loan Agreement; and such of the
Loan Documents as Bank may specify and shall contain such notice in solid
capital letters;
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
9.15 Publicity. Upon approval of Borrower, not to be unreasonably
withheld, and after Bank's request, and subject to applicable laws, regulations
and restrictions, Borrower shall, at Bank's expense, place upon each Hotel, at a
location mutually acceptable to Borrower and Bank, a sign or signs advertising
the fact that financing is being provided by Bank. Bank shall also have the
right to secure printed publicity through newspaper and other media concerning
the Hotel and source of financing.
9.16 Savings Clause. Invalidation of any one or more of the provisions
of this Master Loan Agreement shall in no way affect any of the other provisions
hereof, which shall remain in full force and effect.
9.17 Execution in Counterparts. This Master Loan Agreement may be
executed in two or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same instrument, and in
making proof of this Master Loan Agreement, it shall not be necessary to produce
or account for more than one such counterpart.
9.18 Captions. The captions herein are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Master Loan Agreement nor the intent of any provisions hereof.
9.19 Notices. Each notice, request, demand, director or other
communication provided for hereunder shall be in writing and mailed (by
registered or certified mail, return receipt requested), delivered by hand, or
sent by facsimile (with receipt confirmed by facsimile) to Borrower or Bank at
the addresses indicated herein. Notices and other communications mailed shall be
deemed given three (3) days after being mailed; those sent by facsimile shall be
deemed given when sent, and those delivered by hand or reputable overnight
courier shall be deemed given when delivered. To the greatest extent permitted
under applicable law, Borrower waives all notice and demand in connection with
or relating to this Agreement. Borrower agrees that in any instance in which
reasonable advance notice to Borrower is required by law, such requirement shall
be satisfied if notice is given (deemed given) at least five (5) days in
advance.
9.20 No Commitment. Nothing in this Master Loan Agreement shall be
construed or deemed to be a commitment by Bank to make any future Loan or Loans
to Borrower other than as may be set forth in any Commitment Letter or other
agreements as Borrower and Bank may agree upon.
9.21 WAIVER OF JURY TRIAL. BY ACCEPTANCE HEREOF, BORROWER AGREES THAT
NEITHER BORROWER, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF
BORROWER ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE 'PARTIES' SHALL SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDINGS, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF THIS MASTER LOAN AGREEMENT OR ANY
INSTRUMENT EVIDENCING, SECURING, OR RELATING TO THE INDEBTEDNESS AND OTHER
OBLIGATIONS EVIDENCE HEREBY, ANY RELATED AGREEMENT OR INSTRUMENT, ANY OTHER
COLLATERAL FOR THE INDEBTEDNESS EVIDENCE HEREBY OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN
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OR AMONG THE PARTIES, OR ANY OF THEM. NONE OF THE PARTIES WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
SECTION HAVE BEEN FULLY NEGOTIATED BY THE PARTIES WITH BANK, AND THESE
PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. BANK HAS IN NO WAY AGREED WITH OR
REPRESENTED TO ANY OF THE PARTIES THAT THE PROVISIONS OF THIS SECTION WILL NOT
BE FULLY ENFORCED IN ALL INSTANCES.
9.22 Waiver of Rights. THE BORROWER HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY WAIVES ALL RIGHTS WHICH THE BORROWER HAS UNDER CHAPTER 14 OF TITLE
44 OF THE OFFICIAL CODE OF GEORGIA OR UNDER ANY SIMILAR PROVISION OF APPLICABLE
LAW TO NOTICE AND TO A JUDICIAL HEARING PRIOR TO THE ISSUANCE OF A WRIT OF
POSSESSION ENTITLING A BANK, ITS SUCCESSORS AND ASSIGNS TO POSSESSION OF THE
COLLATERAL UPON DEFAULT OR EVENT OF DEFAULT. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING AND WITHOUT LIMITING ANY OTHER RIGHT WHICH THE BANK MAY HAVE, THE
BORROWER CONSENTS THAT, IF THE BANK FILES A PETITION FOR AN IMMEDIATE WRIT OF
POSSESSION IN COMPLIANCE WITH SECTIONS 00-00-000 AND 00-00-000 OF THE OFFICIAL
CODE OF GEORGIA OR UNDER ANY SIMILAR PROVISION OF APPLICABLE LAW AND THIS WAIVER
OR A COPY HEREOF IS ALLEGED IN SUCH PETITION AND ATTACHED THERETO, THE COURT
BEFORE WHICH SUCH PETITION IS FILED MAY DISPENSE WITH ALL RIGHTS AND PROCEDURES
HEREIN WAIVED AND MAY ISSUE FORTHWITH AN IMMEDIATE WRIT OF POSSESSION IN
ACCORDANCE WITH CHAPTER 14 OF TITLE 44 OF THE OFFICIAL CODE OF GEORGIA OR IN
ACCORDANCE WITH ANY SIMILAR PROVISION OF APPLICABLE LAW, WITHOUT THE NECESSITY
OF AN ACCOMPANYING BOND AS OTHERWISE REQUIRED BY SECTION 44-14- 263 OF THE
OFFICIAL CODE OF GEORGIA OR IN ACCORDANCE WITH ANY SIMILAR PROVISION OF
APPLICABLE LAW. THE BORROWER HEREBY ACKNOWLEDGES THAT IT HAS READ AND FULLY
UNDERSTANDS THE TERMS OF THIS WAIVER AND THE EFFECT HEREOF.
9.23 Joint and Several. If there is more than one entity executing as
Borrower under this Master Loan Agreement, each and every entity executing this
Master Loan Agreement on behalf of Borrower shall be joint and severally liable
for all debts and obligations and this Master Loan Agreement.
- 24 -
IN WITNESS WHEREOF, Borrower and Bank have executed this Master Loan
Agreement as of the above written date by their duly authorized respective
officers.
WITNESSES:
BORROWER:
CNL HOSPITALITY PROPERTIES, INC.,
a Maryland corporation
/s/ Xxxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxx
Signature Printed Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
Xxxxxxx X. Xxxxxx, Xx.
Print/Type Name
(CORPORATE SEAL)
/s/ Xxxxx Xxxxxx
Signature
Xxxxx Xxxxxx
Print/Type Name
BORROWER:
CNL HOSPITALITY PARTNERS, LP,
a Delaware limited partnership
/s/ Xxxxxxx X. Xxxxxx, Xx. By: CNL Hospitality GP Corp., a
Signature Delaware Corporation, its
sole general partner
Xxxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxx
Print/Type Name Printed Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
/s/ Xxxxx Xxxxxx
Signature
(CORPORATE SEAL)
Xxxxx Xxxxxx
Print/Type Name
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BANK:
COLONIAL BANK
/s/ Xxxxx Xxxxxx By: /s/ H.E. Xxxxx
Signature Printed Name: H.E. Xxxxx
Title: President
Xxxxx Xxxxxx
Print/Type Name
/s/ Xxxxxxx X. Xxxxxx
Signature
Xxxxxxx X. Xxxxxx
Print/Type Name
- 26 -
