Exhibit 10.9


 


AMENDED
AND RESTATED RENEWAL AGREEMENT


 


THIS AMENDED AND RESTATED RENEWAL AGREEMENT, dated as of December 30,
2005, is 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”).  (Each a “Party,”
and collectively the “Parties”). 
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 Parties (the “Advisory Agreement”).


 


R E C I T
A L S:


 


WHEREAS, the
Parties entered into the Advisory Agreement; and


 


WHEREAS,
the Parties 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 (as so amended, 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
Parties are entering into that certain Payment Agreement of even date herewith,
which provides for, among other things, the payment to the Advisor of certain
Acquisition Fees under the Advisory Agreement which have been deferred pursuant
to the terms of the Agreement and Plan of Merger, dated as of April 29,
2004, as amended on 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.; and


 


WHEREAS,
the Parties have agreed to reduce the percentage of Total Proceeds payable to
the Advisor as Acquisition Fees pursuant to the Advisory Agreement; and


 


WHEREAS,  the Parties desire to amend and restate the
Original Renewal Agreement upon the terms and conditions set forth herein.


 


NOW,
THEREFORE,  in
consideration of the foregoing and of the mutual covenants and agreements
contained herein, the Parties agree as follows:


 


1.             The
Advisory Agreement, as amended by this Agreement, is renewed for an additional
one-year term commencing on April 1, 2005, and terminating on March 31,
2006.


 





















 


2.             The
definition of the term “Gross Proceeds” in Paragraph 1 of the Advisory
Agreement is amended by deleting the phrase “2003 Offering” and inserting the
phrase “through the offering to Stockholders under Registration Statement No. 333-121065
on Form S-3 pursuant to the Company’s Amended and Restated Reinvestment
Plan” in lieu thereof.


 


3.             The
definition of the term “Permanent Financing” in Paragraph 1 of the Advisory
Agreement is amended by deleting “4.5% and replacing it with “3.0%.”


 


4.             Paragraph 9(b) of the Advisory
Agreement is amended by deleting “4.5%” in the first sentence thereof and
replacing it with “3.0%”.


 


5.             Paragraph
20(e)(iv) of the Advisory Agreement is amended by inserting the following
at the end thereof:


 


“which may
require cooperation for a reasonable period beyond the date of retention by the
Company of a new advisor.”


 


6.             Advisory Agreement.  Except as
specifically amended herein, the Advisory Agreement shall remain in full force
and effect.  Paragraphs two, three, four
and five of this Agreement shall be effective as of  April 1, 2005.


 


7.             Modification.  This Agreement shall not be changed,
modified, terminated, or discharged, in whole or in part, except by an
instrument in writing signed by both Parties, or their respective successors or
assignees.


 


8.             Severability.  The provisions of this Agreement are
independent of and severable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other or others of them may be invalid or unenforceable in whole
or in part.


 


9.             Construction.  The provisions of this Agreement shall be
interpreted, construed and enforced in all respects in accordance with the laws
of the State of Florida applicable to contracts to be made and performed
entirely in said state.


 


10.          Entire Agreement.  This Agreement contains the entire agreement
and understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof.  The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing.


 


11.          Indulgences, Not Waivers.  Neither the failure nor any delay on the part
of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any


 


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other occurrence.  No waiver
shall be effective unless it is in writing and is signed by the party asserted
to have granted such waiver.


 


12.          Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which,
together, shall constitute a single instrument.


 


SIGNATURES
APPEAR ON THE FOLLOWING PAGE


 


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IN WITNESS
WHEREOF, the Parties have duly executed this Amended
and Restated Renewal Agreement as of the date and year first above written.


 


	
   

  	
  CNL HOTELS &
  RESORTS, INC.
(f/k/a CNL Hospitality Properties, Inc.)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark E.
  Patten

  	
   

  
	
   

  	
  Name:

  	
  Mark E.
  Patten

  
	
   

  	
  Its:

  	
  Senior Vice
  President and

  Chief Accounting Officer

  
	
   

  	
   

  
	
   

  	
  CNL
  HOSPITALITY CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James M.
  Seneff, Jr.

  	
   

  
	
   

  	
  Name:

  	
  James M.
  Seneff, Jr.

  
	
   

  	
  Its:

  	
  Chairman