Exhibit 10.10


 


PAYMENT AGREEMENT


 


THIS PAYMENT AGREEMENT (this “Agreement”) is entered into
as of December 30, 2005, by and between CNL HOTELS &
RESORTS, INC. (f/k/a CNL Hospitality Properties, Inc.), a
Maryland corporation (the “Company”), and CNL HOSPITALITY
CORP., a Florida corporation (the “Advisor”).  Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in that certain Advisory
Agreement, dated as of April 1, 2004, between the Company and the Advisor
(the “Advisory Agreement”).


 


W  I  T  N  E
S  S  E  T  H:


 


WHEREAS,
the Company and the Advisor entered into the Advisory Agreement, pursuant to
which the Advisor provides the Company with certain advisory services relating
to, among other things, acquisition and financing transactions; and


 


WHEREAS, the
Company and the Advisor entered into that certain Renewal Agreement, dated as
of March 31, 2005, as amended by the First Amendment to Renewal Agreement,
dated as of June 30, 2005, the Second Amendment to Renewal Agreement, dated
as of July 29, 2005, the Third Amendment to Renewal Agreement, dated as of
August 30, 2005, the Fourth Amendment to Renewal Agreement, dated as of September 29,
2005, the Fifth Amendment to Renewal Agreement, dated as of October 31,
2005, and the Sixth Amendment to Renewal Agreement, dated as of November 30,
2005 (collectively, the “Original Renewal Agreement”), pursuant to
which, among other things, the Advisory Agreement was amended and renewed for
an additional one-year term; and


 


WHEREAS,
the payment of Acquisition Fees (as specifically set forth and enumerated in Section 9(b) of
the Advisory Agreement (the “Acquisition Fees”)) by the Company to the
Advisor under the Advisory Agreement and the Amended Advisory Agreement (as
defined herein) have been deferred, pursuant to the terms of the Agreement and
Plan of Merger, dated as of April 29, 2004, as amended as of June 17,
2004, by and among the Company, the Advisor, CNL Hospitality Properties
Acquisition Corp., CNL Real Estate Group, Inc., Five Arrows Realty
Securities II, LLC, the Stockholders (as defined therein), and CNL Financial
Group, Inc. (the “Merger Agreement”), and the initial claim by the
Advisor for such fees (which will have been deferred through and including December 31,
2005) aggregates $82.7 million (the “Payable Fees”); and


 


WHEREAS,
the Independent Directors of the Board of Directors of the Company (the “Independent
Directors”) have reviewed the Payable Fees (the “Initial
Claim”) and have been in discussions with the Advisor regarding a negotiated
determination of the amount of the Payable Fees in accordance with the terms of
the Advisory Agreement and the Company’s Articles of Amendment and Restatement,
as amended; and


 


WHEREAS,
the Independent Directors and the Advisor, after negotiation, have agreed to
settle the amount of Payable Fees payable by the Company to the Advisor in an
amount less


 





















 


than the Initial Claim upon the terms and conditions
provided herein in full satisfaction, release and discharge of the Payable
Fees; and 


 


WHEREAS,
the Independent Directors have received the opinion of Houlihan Lokey &
Zukin Financial Advisors, Inc., that the amount of the Payment (as defined
herein) is fair to the Company and the stockholders of the Company from a
financial point of view; and


 


WHEREAS,
the Company and the Advisor have determined to reduce the percentage of Total
Proceeds payable to the Advisor pursuant to the Advisory Agreement, and in
connection therewith, are entering into an Amended and Restated Renewal
Agreement of even date herewith (the “Amended and Restated Renewal
Agreement,” which, collectively with the Advisory Agreement, shall be
referred to herein as the “Amended Advisory Agreement”);


 


WHEREAS,
the Independent Directors have unanimously approved this Agreement and the
Amended and Restated Renewal Agreement; and


 


NOW,
THEREFORE, in consideration of the premises and mutual
agreements, covenants and provisions contained herein, and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:


 


1.             Payment.  The Company shall pay the Advisor
an aggregate of $37,000,000 as follows:  (i) $10,000,000
in cash to be paid by the Company to the Advisor on the date hereof by wire
transfer of immediately available funds, and (ii) the issuance and
delivery by the Company to the Advisor of a promissory note made by the Company
to the Advisor in the original principal amount of $27,000,000 in the form
attached hereto as Exhibit A (the “Note”), to be delivered
by the Company to the Advisor on the date hereof (collectively, the “Payment”).  The Company shall pay any documentary stamp
tax with respect to the issuance and delivery of the Note to the extent
required.


 


2.             Payable Fees.  The Advisor hereby acknowledges
and agrees that (i) the Payment shall be in full satisfaction and payment
of all its rights and interests with respect to the Payable Fees and (ii) there
are no other unpaid Acquisition Fees which have been incurred by the Company or
earned by the Advisor on or prior to December 31, 2005, other than the
Payable Fees.  


 


3.             Waiver of Acquisition Fees and Asset Management
Fees.  The Advisor hereby acknowledges and agrees (i) to
irrevocably waive the right to payment of any Acquisition Fees and Asset
Management Fees (as enumerated in Section 9(a) of the Amended
Advisory Agreement) payable by the Company to the Advisor under the Amended
Advisory Agreement for the period from and including January 1, 2006
through and including June 30, 2006 (collectively, the “Relinquished
Fees”) and (ii) that the mutual agreements, covenants and provisions
contained in this Agreement shall be in full satisfaction and payment of all of
its rights and interests with respect to the Relinquished Fees.  Except for the Payment with respect to
Payable Fees as set forth in paragraph 1 and paragraph 2 and the waiver of the
Relinquished Fees as set forth in paragraph 3, all other advisory fees under
the Amended Advisory Agreement, including, without limitation, Development
Fees, incurred by the Company and earned by the


 


2





















 


Advisor shall be payable in
accordance with the terms and conditions of the Amended Advisory Agreement.


 


4.             Release by the Company.  The
Company, for itself, each of its subsidiaries and Affiliates, successors and
assigns, and any of their respective past, present and future employees,
agents, representatives, attorneys, officers, directors, stockholders and
trustees (collectively the “Company Releasing Parties”), does hereby
fully, finally and forever remise, release and discharge (the “Company
Release”) the Advisor, its subsidiaries and Affiliates, successors and
assigns, and any of their respective past, present and future employees,
agents, representatives, attorneys, officers, directors, stockholders and
trustees (collectively the “Company Released Parties”), from any and all
actions, causes and rights of action, counterclaims, suits, debts, dues, sums
of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, damages, special damages, judgments, expenses, executions,
liens, claims of liens, claims of costs, penalties, attorneys’ fees, or any
other compensation, recovery or relief, on account of any liability,
obligation, demand or cause of action of whatever nature (collectively, “Losses”)
relating to, arising out of or in connection with any claim that the Company
should have settled the Payable Fees and the Relinquished Fees for an amount
less than the Payment, whether at law, in equity or otherwise, whether
currently outstanding or arising subsequent hereto (including as a result of
newly enacted laws or regulations), known or unknown, contingent or absolute,
suspected or unsuspected, disclosed or undisclosed, hidden or concealed, disputed
or undisputed, liquidated or unliquidated, matured or unmatured and whether or
not accrued, and whether or not asserted or assertable in law, equity or
otherwise, for, upon or by reason of any act, omission, negligence or other
matter, cause or thing whatsoever from the beginning of the world until the
date hereof, which any of the Company Releasing Parties ever had or may have
had, now have, or hereafter can, shall or may have against any of the Company
Released Parties for, upon or by reason of any act, omission or other matter,
cause or thing whatsoever, in whatever capacity, from the beginning of the
world until the date hereof; and each of the Company Releasing Parties hereby
agrees that it shall not make any claim, demand or cause of action that the
Company should have settled the Payable Fees and the Relinquished Fees for an
amount less than the Payment, or challenging the validity, legality, binding
nature or enforceability of the Company Release.  Notwithstanding the foregoing or any other
provision of this Agreement, nothing in this Agreement shall be deemed to
constitute a release or discharge of the Advisor from its obligations under
this Agreement, the Advisory Agreement, the Original Renewal Agreement, the
Amended Advisory Agreement, the Amended and Restated Renewal Agreement or the
Merger Agreement not specifically contemplated by the Company Release.


 


5.             Release by the Advisor.  The
Advisor, for itself, each of its subsidiaries and Affiliates, successors and
assigns, and any of their respective past, present and future employees,
agents, representatives, attorneys, officers, directors, stockholders and
trustees (collectively the “Advisor Releasing Parties”), does hereby
fully, finally and forever remise, release and discharge (the “Advisor Release”)
the Company, its subsidiaries and Affiliates, successors and assigns, and of
any of their respective past, present, and future employees, agents,
representatives, attorneys, officers, directors, stockholders and trustees
(collectively the “Advisor Released Parties”), from any and all Losses
relating to, arising out of or in connection with any claim that the Advisor
was entitled, owed or had any rights with respect to Payable Fees and
Relinquished Fees for an amount in excess of the Payment, whether at law, in
equity or otherwise, whether currently outstanding or arising subsequent hereto
(including as a result of newly enacted laws or


 


3





















 


regulations), known or unknown,
contingent or absolute, suspected or unsuspected, disclosed or undisclosed,
hidden or concealed, disputed or undisputed, liquidated or unliquidated,
matured or unmatured and whether or not accrued, and whether or not asserted or
assertable in law, equity or otherwise, for, upon or by reason of any act,
omission, negligence or other matter, cause or thing whatsoever from the
beginning of the world until the date hereof, which any of the Advisor
Releasing Parties ever had or may have had, now have, or hereafter can, shall
or may have against any of the Advisor Released Parties for, upon or by reason
of any act, omission or other matter, cause or thing whatsoever, in whatever
capacity, from the beginning of the world until the date hereof; and each of
the Advisor Releasing Parties hereby agrees that it shall not make any claim,
demand or cause of action that the Advisor was entitled, owed or had any rights
with respect to Payable Fees and Relinquished Fees for an amount in excess of
the Payment, or challenging the validity, legality, binding nature or
enforceability of the Advisor Release. 
Notwithstanding the foregoing or any other provision of this Agreement,
nothing in this Agreement shall be deemed to constitute a release or discharge
of the Company from its obligations under this Agreement, the Advisory
Agreement, the Amended Advisory Agreement, the Amended and Restated Renewal
Agreement or the Merger Agreement not specifically contemplated by the Advisor
Release.


 


6.             Representations and Warranties.  Each of
the Company and the Advisor hereby represents and warrants to the other party
that:


 


(a)           it is a
corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation, with full corporate power and authority
to execute and deliver this Agreement, perform its obligations hereunder and
consummate the transactions contemplated hereby;


 


(b)           The
execution and delivery of this Agreement by it, and the performance of its
obligations hereunder, have been duly and validly authorized by all necessary corporate
action, no other action on its part being necessary.  This Agreement has been duly and validly
executed and delivered by such party and constitutes the legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms; and


 


(c)           Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) conflict with, or result in a
breach of any provision of, such party’s certificate of incorporation or by-laws,
(ii) violate, or conflict with, or result in a breach of any provision of,
or constitute a default (or an event which, with the giving of notice, the
passage of time or otherwise, would constitute a default) under, or entitle any
person (with the giving of notice, the passage of time or otherwise) to
terminate, accelerate, modify or call a default under, or result in the
creation of any lien or other encumbrance upon any of such party’s properties
or assets under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, contract, undertaking, agreement,
lease, arrangement or understanding or other instrument or obligation to which
such party is a party, (iii) violate any order, writ, injunction or decree,
or statute, rule or regulation applicable to such party or any of its
properties or assets or (iv) require any action, consent or approval of,
or review by, or registration or filing by such party or any of its Affiliates
with, any third party or any governmental authority prior to effectiveness
hereof.


 


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7.             Indemnification.


 


(a)           The
Company agrees to indemnify and hold the Company Released Parties, or any of
them, harmless from any and all Losses incurred by any such Company Released
Party, to the extent arising out of or resulting from any inaccuracy in or
breach of any of the representations and warranties of the Company hereunder
set forth in paragraph 6.


 


(b)           The
Advisor agrees to indemnify and hold the Advisor Released Parties, or any of
them, harmless from any and all Losses incurred by any such Advisor Released
Party, to the extent arising out of or resulting from any inaccuracy in or
breach of any of the representations and warranties of the Advisor hereunder
set forth in paragraph 6.


 


8.             Confidentiality.  Subject to the following
sentence, each party will treat any other party’s confidential information
obtained from any source or as a result of this Agreement, the Advisory
Agreement, the Original Renewal Agreement, the Amended Advisory Agreement and
the Amended and Restated Renewal Agreement (including, without limitation, the
negotiations of the parties in connection therewith) as confidential and will
not disclose such information to any person, firm or enterprise, or use
(directly or indirectly) any such information for its own benefit or the
benefit of any other party except to such party’s advisors, unless authorized
in writing by the party that owns the confidential information, and even then,
agrees to limit access to and disclosure of such confidential information on a “need
to know” basis only to others who have agreed in writing to be bound by similar
confidentiality obligations. 
Notwithstanding the foregoing, the parties may disclose confidential
information as required by a court of competent jurisdiction, governmental
authority or regulatory agency; provided that the disclosing party must:
(i) use reasonable efforts to maintain the confidential nature of such
confidential information, including but not limited to providing such
disclosure under seal and/or pursuant to a protective order; and (ii) provide
reasonable advance written notice of such required disclosure to the party that
owns such confidential information. 
Notwithstanding the foregoing, the Advisor acknowledges and agrees that
the Company may be required to disclose this Agreement in connection with its
reporting obligations under the rules and regulations of the Securities
and Exchange Commission.


 


9.             Notices.  All notices and other
communications under this Agreement shall be dated and in writing and shall be
deemed given (a) when delivered personally by hand (with written
confirmation of receipt), (b) when sent by facsimile (with written
confirmation of transmission) or (c) one business day following the day
sent by overnight courier (with written confirmation of receipt), in each case
at the following addresses and facsimile numbers (or to such other address or
facsimile number as a party may have specified by written notice given to the
other party pursuant to this provision):


 


If to the Company, to:


 


CNL Hotels &
Resorts, Inc.


450 South Orange Avenue


 


5





















 


Orlando, Florida 32801


Facsimile: (407) 648-0398


Attn:  Greerson G. McMullen, Esq.


 


If to the Advisor, to:


 


CNL Hospitality Corp.


450 South Orange Avenue


Orlando, Florida 32801


Facsimile:  (407) 843-4444


Attn:  Timothy Manor, Esq.


 


10.           Miscellaneous.  (a)  The parties hereto
acknowledge that they have completely read, fully understand, and voluntarily
accept the terms of this Agreement, having been advised by their own
independent counsel of the scope and legal effect hereof.  This Agreement was prepared by all
signatories hereto and in case of ambiguity shall not be construed more
strongly against one than against the other.


 


(b)           This
Agreement shall be deemed to be a contract made under the laws of the State of
Florida and shall be governed by, and construed in accordance with, the laws of
the State of Florida, without regard to the principles of conflicts of law
thereof.  The parties hereby irrevocably
consent to the jurisdiction of all courts (state and federal) sitting in the
State of Florida in connection with any claim, action or proceeding relating to
or in connection with this Agreement, and hereby waive any defense of forum
non  conveniens or other such claim or defense in respect of the
lodging of any such claim, action or proceeding in any such court.  


 


(c)           This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their respective heirs, legal representatives, successors and assigns. 


 


(d)           If any
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and
effect.   Upon such determination by a
court or tribunal of competent jurisdiction that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.


 


(e)           Neither
party shall by any act delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or with respect to a breach by the
other parties hereto of any of the terms and conditions hereof.  No failure to exercise, nor any delay in
exercising, on the part of either party, any right, power or privilege
hereunder shall operate as a waiver thereof. 
No single or partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right, power of privilege.  A
waiver by either party of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which such party would
otherwise have on any future occasion.


 


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(f)            The
rights and remedies provided herein are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies existing at
law or in equity or otherwise.


 


(g)           The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without
limitation.”  The words “hereof,” “herein”
and “hereunder” and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement unless the context otherwise requires.  The definitions contained in this Agreement
are applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such term.


 


(h)           Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
the parties hereto, or in the case of a waiver, by the party against whom the
waiver is to be effective.


 


(i)            This
Agreement, along with the Amended Advisory Agreement, contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings oral or written
(including, without limitation, the Preliminary Term Sheet executed by the
parties on December 8, 2005), with respect to such matters.  Notwithstanding the foregoing, the Advisor
and the Company acknowledge that (1) Section 8.13 of the Merger Agreement,
among various parties including the Advisor and the Company, has provisions
which are currently binding on the Advisor and the Company, and to the extent Section 8.13
of the Merger Agreement is inconsistent with the terms and conditions of this Agreement,
this Agreement shall supersede Section 8.13 and (2) there shall be no
deferral of advisory fees under the Amended Advisory Agreement after the date
hereof unless agreed to in writing by the Company and the Advisor.


 


(j)            This
Agreement and any amendment hereto may be executed by the parties hereto in one
or more counterparts, each of which shall be deemed to be an original as to the
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. 
This Agreement shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of all of the
parties reflected as signatories.


 


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IN
WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be executed on its behalf by a duly authorized officer as of the
date first above written.


 


	
   

  	
  CNL
  HOTELS & RESORTS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark E.
  Patten

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mark E. Patten

  
	
   

  	
   

  	
  Title: 

  	
  Senior Vice
  President and

  
	
   

  	
   

  	
   

  	
  Chief Accounting
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  CNL HOSPITALITY
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ James M. Seneff, Jr.

  	
   

  
	
   

  	
   

  	
  Name: James M.
  Seneff, Jr.

  
	
   

  	
   

  	
  Title:   Chairman

  
						



 


8





















 


EXHIBIT A


 


PROMISSORY NOTE


 


9





















 


COPY


 


THIS PROMISSORY NOTE HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT
COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE
FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.


 


PROMISSORY NOTE


 


	
  $27,000,000

  	
   

  	
  Issuance Date:
  December 30, 2005

  



 


FOR VALUE
RECEIVED, the undersigned, CNL HOTELS &
RESORTS, INC., a Maryland corporation (the “Maker”), hereby promises
to pay CNL HOSPITALITY CORP., a Florida
corporation (the “Payee”), the principal sum of Twenty-Seven Million
($27,000,000) Dollars, together with interest on the outstanding principal
balance hereunder accrued from the date hereof at the fixed simple rate of six
percent (6%) per annum.  All payments of
principal and/or interest shall be paid as set forth below, and each such
payment shall be made in lawful money of the United States of America by wire
transfer of immediately available funds to such account as shall have been
designated by the Payee in advance of the subject payment date.


 


1.             Payments of
Principal and Interest.


 


(a)           The principal of this
Note, together with all unpaid accrued interest hereunder, shall be due and
payable as follows:  (i) $15,000,000
in principal on January 31, 2006, and (ii) $12,000,000 in principal
on January 31, 2007 (the “Note Payment Dates”).


 


(b)           Accrued
interest on the unpaid principal balance of this Note shall be payable in
arrears on each of the Note Payment Dates. 
All interest hereunder shall be computed on the basis of a year of 360
days, and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).  Any principal and, to the extent legally
permitted, interest hereunder which is not paid when due under this Note shall
accrue interest at the rate provided above plus 600 basis points until such
overdue principal or interest has been paid in full.


 


(c)           In
the event that any scheduled payment date hereunder is a day on which banks in
the State of Florida are required or authorized to be closed, then the payment
that would be due on such day shall instead be due and payable on the next day
which is not such a non-banking day, with additional interest for such delay at
the rate then in effect hereunder.


 


(d)           Time is of the essence
with respect to the Maker’s payment obligations hereunder.


 


2.             Prepayment.


 


The Maker shall have the right to prepay, without penalty, at any time
or times after the date hereof, all or any portion of the outstanding principal
balance of this Note, together with interest on the amount of principal
prepaid, accrued to the date of prepayment.


 


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3.             Events of Default.


 


The
following are Events of Default hereunder:


 


(a)           Any
failure by the Maker to pay when due all or any principal or interest
hereunder; or


 


(b)           If
the Maker (i) admits in writing its inability to pay generally its debts
as they mature, or (ii) makes a general assignment for the benefit of
creditors, or (iii) is adjudicated a bankrupt or insolvent, or (iv) files
a voluntary petition in bankruptcy or reorganization, or (v) takes
advantage, as against its creditors, of any bankruptcy or reorganization law of
the United States of America or any state or subdivision thereof now or
hereafter in effect, or (vi) has a petition or proceeding filed against it
under any provision of any bankruptcy or reorganization law or statute of the
United States of America or any state or subdivision thereof, which petition or
proceeding is consented to by the Maker or is not dismissed within sixty (60)
days after the date of the commencement thereof, (vii) has a receiver,
liquidator, trustee, custodian, conservator, sequestrator or other such person
appointed by any court to take charge of its affairs or assets or business and
such appointment is consented to by the Maker or is not vacated or discharged
within sixty (60) days thereafter, or (viii) takes any action in
furtherance of any of the foregoing; or


 


(c)           Any
liquidation, dissolution or winding up of the Maker or its business.


 


4.             Remedies on
Default.


 


If any Event of Default shall occur and be continuing after notice by
Payee of the Event of Default, and Maker fails to cure such Event of Default
within 15 days after Payee mails such notice (except for an Event of Default
under Section 3(b) above, the occurrence of which shall automatically
effect acceleration hereunder), the Payee shall, in addition to any and all
other available rights and remedies, have the right, at its option, (a) to
declare the entire unpaid principal balance of this Note, together with all
accrued interest hereunder, to be immediately due and payable, and (b) to
pursue any and all available remedies for the collection of such principal and
interest, including but not limited to the exercise of all rights and remedies
against the Maker.


 


5.             Certain Waivers.


 


Except as otherwise expressly provided in this Note, the Maker hereby
waives diligence, demand, presentment for payment, protest, dishonor,
nonpayment, default, and notice of any and all of the foregoing.  The Maker hereby expressly agrees that this
Note, or any payment hereunder, may be extended, modified or subordinated (by
forbearance or otherwise) from time to time, without in any way affecting the
liability of the Maker.  The Maker hereby
further waives the benefit of any exemption under any insolvency laws.


 


6.             Assignment.


 


This Note shall be binding upon, inure to the benefit of and be
enforceable by any successor in interest to the Payee; provided, however, that the Payee shall not directly or
indirectly assign any of its rights under this Note without the prior written
consent of the Maker.


 


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Notwithstanding
the foregoing, the Payee shall be entitled to assign this Note or portion
thereof to one or more of its stockholders, their affiliates or a trust or
similar entity created by one or more stockholders (each, a “Successor Payee”).  In the event of such assignment, the Payee
shall deliver to the Maker, along with this Note, a written instrument
effecting such assignment in form and substance reasonably satisfactory to the
Maker, which instrument shall specify the amount of principal assigned to each Successor
Payee.  The Maker shall promptly
thereafter deliver replacement Notes to each Successor Payee in accordance with
the Payee’s instructions.


 


7.             Waivers and
Amendments.


 


Neither any provision of this Note nor any performance hereunder may be
amended or waived orally, but only by an agreement in writing and signed by the
party against whom enforcement of any waiver, change, modification or discharge
is sought.


 


8.             Cumulative
Remedies.


 


No right or remedy conferred upon the Payee under this Note is intended
to be exclusive of any other right or remedy contained herein or in any
instrument or document delivered in connection herewith, and every such right
or remedy shall be cumulative, may be exercised singly or concurrently, and
shall be in addition to every other such right or remedy contained herein
and/or now or hereafter existing at law or in equity or otherwise.


 


9.             Waivers; Course of
Dealing.


 


No course of dealing between the Maker and the Payee, or any failure or
delay on the part of the Payee in exercising any rights or remedies, or any
single or partial exercise of any rights or remedies, shall operate as a waiver
or preclude the exercise of any other rights or remedies available to the
Payee.


 


10.           Governing Law;
Consent to Jurisdiction; Waiver of Jury Trial.


 


This Note shall be deemed to be a contract made under the laws of the
State of Florida and shall be governed by, and construed in accordance with,
the laws of the State of Florida, without regard to the principles of conflicts
of law thereof.  The Maker hereby
irrevocably consents to the jurisdiction of all courts (state and federal)
sitting in the State of Florida in connection with any claim, action or
proceeding relating to or for the collection or enforcement of this Note, and
hereby waives any defense of forum  non  conveniens or other
such claim or defense in respect of the lodging of any such claim, action or
proceeding in any such court.  THE MAKER
HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING UNDER OR IN RESPECT OF OR FOR ENFORCEMENT OF THIS NOTE.


 


11.           Collection Costs.


 


In the event that the Payee shall, after the occurrence of an Event of
Default, turn this Note over to an attorney for collection, the Maker shall
further be liable for and shall pay to the Payee all collection costs and
expenses incurred by the Payee, including reasonable attorneys’ fees and
expenses; and the Payee may take judgment for all such amounts in addition to
all other sums due hereunder.


 


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IN WITNESS WHEREOF, the Maker has caused this instrument to be duly
executed as of the date first set forth above.


 


	
   

  	
  CNL
  HOTELS & RESORTS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Mark E.
  Patten

  
	
   

  	
   

  	
  Title: Senior
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Accounting
  Officer

  
						



 


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