EX-10.1



 






EXHIBIT 10.1




SECOND AMENDMENT TO LOAN AGREEMENT




     This Second Amendment to Loan Agreement (this “Amendment”) is entered into as of
October 31, 2005 between GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
(“Lender”), and WINSTON SPE II LLC, a Delaware limited liability company
(“Borrower”).



RECITALS




     A. Lender and Borrower have previously entered into a certain Loan Agreement, dated as of
March 11, 2005, as amended by that certain First Amendment to Loan Agreement, dated as of June 8,
2005 (together, the “Agreement”). Terms used and not otherwise defined in this Amendment
shall have the meanings attributed to them in the Agreement, which is incorporated into this
Amendment by this reference as if fully set forth herein. As the context may require, section
references in this Amendment shall refer to the designated section of the Agreement.



     B. Borrower has requested that Lender (i) increase the Commitment to $215,000,000, (ii) extend
the Maturity Date to October 31, 2010, (iii) add six (6) Additional Projects to the Collateral, and
(iv) modify the Agreement in certain other respects as hereinafter set forth; and Lender has agreed
to such modification upon the terms and conditions set forth below.



AGREEMENTS




     NOW, THEREFORE, in consideration of the foregoing Recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower and Lender
hereby covenant and agree as follows:



     1.      Definitions.




	 		 	(a)     Replaced Definitions. Section 1.1 is amended by inserting the following
defined terms in lieu of the corresponding defined terms presently set forth in the
Agreement:






	 	(i)	 	“Borrowing Base” means, as of any date
of determination by Lender, an amount equal to the lesser of (a) the
Commitment or (b) the amount that results in a Cash on Cash Return of
twelve and one-half percent (12.5%).
	 
	 	(ii)	 	“Budget Approval Period” means any
Fiscal Year or portion thereof in which either (a) an Event of Default
exists, (b) the Cash on Cash Return is less than twelve and one-half
percent (12.5%), or (c) the Debt Service Coverage is less than 1.4 to
1.0.




 









 






	 	(iii)	 	“Commitment” means the commitment of
Lender to made Advances and/or incur Letter of Credit Obligations,
which commitment shall be Two Hundred Fifteen Million Dollars
($215,000,000) on the First Additional Projects Closing Date, as such
amount may be permanently reduced pursuant to Section 2.3(1).
	 
	 	(iv)	 	“Loan Year” means the period between
the First Additional Projects Closing Date, and October 31, 2006 for
the first Loan Year and the period between each succeeding November 1
and October 31 until the Maturity Date.
	 
	 	(v)	 	“Maturity Date” means the earlier of
(a) October 31, 2010, or (b) any earlier date on which the entire Loan
is required to be paid in full, by acceleration or otherwise, under
this Agreement or any of the other Loan Documents.






	 		 	(b)     Amended Definitions. Section 1.1 is hereby amended by modifying the
following definitions in the manner indicated:






	 	(i)	 	“License Agreement” is amended by adding the following sentence
to the end of such definition: “If any Licensor, including, without
limitation, Marriott International, Inc. or any of its Affiliates, also
manages a Hotel under a management agreement that governs both the licensing
and management of the Hotel, ‘License Agreement’ shall also be
deemed to include such management agreement.”
	 
	 	(ii)	 	“Standard Adjustments” is amended by deleting clause (a) and
inserting the following in lieu thereof: “(a) an occupancy rate equal to
the lesser of the Project’s actual occupancy rate or (i) an eighty percent
(80%) occupancy rate for Extended Stay Hotels, or (ii) a seventy-five
percent (75%) occupancy rate for all other Hotels.”






	 		 	(c)     New Definitions. Section 1.1 is amended by adding the following new
definitions in the appropriate alphabetical sequence:






	 	 	 	“Extended Stay Hotel” means a Hotel licensed under the brands
currently known as “Homewood Suites,” “TownePlace Suites,”
“Residence Inns” or any other similar brand mutually agreed to by
Borrower and Lender.
	 
	 	 	 	“First Additional Projects” means the Hotels added to the Collateral
as Additional Projects on the First Additional Projects Closing Date and
listed as Hotels numbered 24 through 29 inclusive on Exhibit A, or
any of them, as the context may require.
	 
	 	 	 	“First Additional Projects Closing Date” means October 31, 2005.




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     2.      Note. The first sentence of Section 2.1(1)(b) is deleted and replaced by the
following:




	 	 	 	“To evidence the Commitment, Borrower has executed and delivered to Lender (i) a
Promissory Note in the principal face amount of $136,600,000, dated as of March 11,
2005, (ii) a Promissory Note in the principal amount of $18,400,000 dated as of
March 11, 2005, which note (the ‘New York Note’) is an amendment and
restatement of Borrower’s existing promissory note secured by the Hilton Garden Inn
Albany Airport, and (iii) a Promissory Note in the principal face amount of
$60,000,000, dated as of the First Additional Projects Closing Date (collectively,
the ‘Note’).”





     3.      Interest and Applicable Margin. In the fifth (5th) line of the grid
contained in Section 2.5(1), “13%” is changed to “12.5%”.



     4.      Fees. Section 2.6 is amended as follows:




	 		 	(a)     The following sentence is added at the end of Section 2.6(1): “On the First
Additional Projects Closing Date, Borrower shall pay to Lender an additional
commitment fee in the amount of $300,000.”
	 
	 		 	(b)     The following sentence is added at the end of Section 2.6(2): “In determining
the Unused Commitment Fee for the Fiscal Quarter beginning October 1, 2005, the
Commitment shall be deemed to be $155,000,000 through the day immediately preceding
the First Additional Projects Closing Date and $215,000,000 thereafter.”
	 
	 		 	(c)     In the first and last lines of Section 2.6(3), “Closing Date” is changed to
“First Additional Projects Closing Date”. In the sixth (6th) line of
Section 2.6(3), ”$775,000” is changed to “$1,075,000”.





     5.      References to Cash on Cash Return. In Sections 2.15(1)(d), 2.17(1)(c) and
3.2(2)(d), “thirteen percent (13%)” is changed to “twelve and one-half percent (12.5%)”.



     6.      Houston Vacant Parcel. The following new subsection (2) is added to Section 2.15:




	 		 	     (2) Houston Vacant Parcel. No Partial Release of that certain parcel
of unimproved land located at 11040 Louetta Road 64, Houston, Texas (the
“Houston Vacant Parcel”) shall be permitted except in connection with the
Partial Release of both the adjoining Courtyard by Marriott and the adjoining
Marriott TownePlace Suites (or the Partial Release of the latter of such Hotels to
be released).





     7.      Birmingham Marriott TownePlace Suites. The following new Section 2.18 is added to
the end of Article 2:



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	 	 	 	     Section 2.18 Birmingham Marriott TownePlace Suites. Notwithstanding
any other provisions of this Agreement to the contrary, (i) Lender shall recognize
only seventy-five percent (75%) of the Underwritten NOI from the Birmingham Marriott
TownePlace Suites (“Birmingham TownePlace”) in determining Cash on Cash
Return, (ii) if any Person seeks to enforce the Parking Requirements (as hereinafter
defined) against Birmingham TownePlace, Lender shall not be obligated to recognize
any Underwritten NOI from such Project in determining Cash on Cash Return, and
(iii) Birmingham TownePlace shall not be counted against the minimum number of
fifteen (15) Projects required to be secured by the Loan Documents pursuant to
Section 2.15(f). The foregoing provisions of this Section 2.18 shall cease to apply
upon the execution and recordation of an amendment to that certain Declaration of
Easements, Covenants, Conditions and Restrictions dated April 30, 1997 and recorded
as Instrument Number 9705-4626 in the real property records of Jefferson County,
Alabama, terminating (a) the obligations of Birmingham TownePlace to provide a
stated ratio of parking spaces to building floor area, and (b) the cross-parking
easement between Birmingham TownePlace and the adjacent property currently owned by
Lowe’s Home Centers, Inc. (together, the “Parking Requirements”).





     8.      Assumption/Transfer. In Sections 8.1(2)(b)(ii) and (xiii), “Closing Date” is
changed to “First Additional Projects Closing Date”.



     9.      Limitation on Other Debt. The following new sentence is added to the end of
Section 8.8: “Lender hereby consents to Borrower’s guaranty of the obligations of Operating Lessee
under the License Agreements for any Projects that constitute a portion of the Collateral at any
time.



     10.    FF&E Expenditures. The following new sentence is added after the first sentence
of Section 8.18: “FF&E reserve funds deposited with and expended by any Licensor for FF&E shall be
credited toward the Minimum Replacement Amount.”



     11.    List of Hotels. Exhibit A is deleted and replaced by Exhibit A
attached to this Amendment.



     12.    Other Exhibits and Schedules. Exhibit B and Schedules 2.16 and
8.20(2) to this Amendment are added to the Agreement as part of the correspondingly
numbered exhibits and schedules thereto.



     13.    Conforming Changes. In the subject line of Exhibit C, Schedule
2.3(1) and Schedule 2.5(5), “$155,000,000” is changed to “$215,000,000”.



     14.    Interest Rate Protection Agreement. Borrower has obtained the Rate Cap
Transaction attached hereto as Schedule 2.16 – Supplemental Interest Rate Protection
Agreement from SMBC Derivative Products Limited in the “notional amount” of $215,000,000 and
having a term ending January 1, 2007 and a rate cap of 6.14% (the “Supplemental Interest Rate
Protection Agreement”). The Supplemental Interest Rate Protection Agreement shall be a part of
and included within the Interest Rate Protection Agreement for all purposes of the Agreement.



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     15.    Borrower’s Representations and Warranties. Borrower hereby represents and
warrants to Lender as follows:




	 		 	(a)     there are no offsets, counterclaims or defenses of any kind or nature whatsoever
existing against the indebtedness evidenced by the Note or the Agreement, or
otherwise relating to any of the Obligations, and that it has no claim for or right
to reimbursement from Lender of any sums heretofore paid to Lender on account of the
Loan, whether by way of interest payments, principal payments, commitment fees or
for any other reason; and
	 
	 		 	(b)     all of the representations and warranties made by it under any of the Loan
Documents to which it is a party (i) are true, complete and correct in all material
respects on the date hereof, (ii) are hereby expressly restated by it and
incorporated herein by this reference, and (iii) are made with respect to the Loan
Documents as the same have been amended by this Amendment and by all additional
amendments, modifications, renewals, substitutions and replacements of the Loan
Documents and all new Loan Documents executed by Borrower in connection herewith.





     16.    Release of Lender. Borrower acknowledges that it is executing this Amendment as
its own voluntary act and upon and with advice of counsel. Borrower hereby unconditionally and
irrevocably forever releases, acquits, and discharges Lender and its employees, officers,
directors, agents, servants and counsel (collectively, the “Related Parties”) from any and
all claims, demands, actions, causes or actions, suits, debts, costs, dues, sums of money,
accounts, bonds, bills, covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, expenses and liabilities whatsoever, known or unknown, at law or in
equity, irrespective of whether such claims arise out of contract, tort, violation of laws or
regulations or otherwise, which Borrower ever had, now has or hereafter can, shall or may have
against Lender or any of the Related Parties or any of them for, upon or by reason of any matter,
cause or thing whatsoever from the beginning of the world to and including the date hereof arising
out of, in connection with, or related in any manner to the Loan, the Note, the Agreement, this
Amendment, and/or any of the other Loan Documents.



     17.    Confirmation and Ratification. Borrower covenants to pay the Loan and perform the
other Obligations as provided in the Agreement and other Loan Documents. Except as expressly
modified pursuant to the terms and conditions of this Amendment or of any of the other Loan
Documents or amendments thereto executed in connection herewith, all of the terms, covenants and
conditions of the Note, the Agreement and all of the other Loan Documents shall continue unamended
and in full force and effect, and Borrower hereby confirms, ratifies and reaffirms all of such
terms, covenants and conditions.



     18.    Severability. In case any one or more of the provisions of this Amendment shall
be invalid, illegal or unenforceable in any respect, the validity of the remaining provisions shall
be in no way affected, prejudiced or disturbed thereby.



     19.    Counterparts. This Amendment may be executed in any number of counterparts, each
of which shall be an original but all together shall constitute one Amendment.



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     20.    Conflicting Provisions. This Amendment is intended to supplement the Agreement,
and the provisions of this Amendment shall be construed to the maximum extent possible in the
manner necessary to avoid any conflict among their respective terms and conditions. In the event
of any irreconcilable conflict between this Amendment and the terms of the Agreement, the terms of
this Amendment shall govern and control.



     21.    Headings. The headings of the Sections of this Amendment are for convenience and
reference only and shall not be considered a part hereof nor shall they be deemed to limit or
otherwise affect any of the terms or provisions thereto.



     22.    Obligations of the Company. The Company hereby consents to the foregoing
provisions of this Amendment and executes this Amendment solely for the purposes of indicating such
consent and affirming its obligations under the Loan Documents previously executed by the Company
in connection with the Loan, including, without limitation, the Joinder to the Loan Agreement, the
Indemnification Agreement, and the Reimbursement Agreement, all dated as of March 11, 2005.



[SIGNATURES FOLLOW]




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     EXECUTED as of the date first written above.



	 	 	 
	 

	 	LENDER:

	 
	 	 
	 

	 	GENERAL ELECTRIC CAPITAL CORPORATION,

a Delaware corporation
	 
	 	 
	 

	 	/s/ Maria R. Fonseca
	 

	 	Name: Maria R. Fonseca

Title: Senior Operations Manager

GE Real Estate — Specialized Industries
	 
	 	 
	 
	 	 
	 

	 	BORROWER:

WINSTON SPE II LLC, a Delaware

limited liability company
	 
	 	 
	 

	 	/s/ Jacob A. Darling
	 

	 	Name : Jacob A. Darling

Title: Vice President and Director of Finance
	 
	 	 
	 
	 	 
	 

	 	COMPANY (Solely as to Paragraph 22):
	 
	 	 
	 

	 	WINSTON HOTELS, INC.,

a North Carolina corporation
	 
	 	 
	 

	 	/s/ Jacob A. Darling
	 

	 	Name : Jacob A. Darling

Title: Vice President and Director of Finance






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EXHIBIT A




LIST OF HOTELS




	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	Hotel	 	 	Street Address	 	 	County	 
	 	1.

	 	 	Homewood Suites Phoenix
	 	 	2536 West Beryl Avenue

Phoenix, AZ 85021
	 	 	Maricopa County	 
	 	2.

	 	 	Holiday Inn Express Clearwater
	 	 	13625 Icot Blvd.

Clearwater, FL 33760
	 	 	Pinellas County	 
	 	3.

	 	 	Homewood Suites Alpharetta
	 	 	10775 Davis Drive

Alpharetta, GA 30004
	 	 	Fulton County	 
	 	4.

	 	 	Homewood Suites Lake Mary
	 	 	755 Currency Circle

Lake Mary, FL 32746
	 	 	Seminole County	 
	 	5.

	 	 	Hampton Inn Brunswick
	 	 	112 Tourist Drive

Brunswick, GA 31520
	 	 	Glynn County	 
	 	6.

	 	 	Hampton Inn Southlake
	 	 	1533 Southlake Pkwy.

Morrow, GA 30260
	 	 	Clayton County	 
	 	7.

	 	 	Hilton Garden Inn Atlanta Winward
	 	 	4025 Windward Plaza

Alpharetta, GA 30005
	 	 	Fulton County	 
	 	8.

	 	 	Fairfield Inn Ann Arbor
	 	 	3285 Broadwalk

Ann Arbor, MI 48108
	 	 	Washetenaw County	 
	 	9.

	 	 	Holiday Inn at Tinton Falls
	 	 	700 Hope Road

Tinton Falls, NJ 07724
	 	 	Monmouth County	 
	 	10.

	 	 	Hilton Garden Inn Albany Airport
	 	 	800 Albany-Shaker Road

Albany NY 12211
	 	 	Albany County	 
	 	11.

	 	 	Hampton Inn Boone
	 	 	1075 Highway 105

Boone, NC 28607
	 	 	Watauga County	 
	 	12.

	 	 	Hampton Inn Cary
	 	 	201 Ashville Avenue

Cary, NC 27511
	 	 	Wake County	 
	 	13.

	 	 	Homewood Suites Raleigh
	 	 	5400 Homewood Banks Blvd.

Raleigh, NC 27612
	 	 	Wake County	 
	 	14.

	 	 	Comfort Inn Durham
	 	 	3508 Mt. Moriah Road

Durham, NC 27707
	 	 	Durham County	 
	 















 






	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	15.

	 	 	Hampton Inn Durham
	 	 	1816 Hillandale Road

Durham, NC 27705
	 	 	Durham County	 
	 	16.

	 	 	Homewood Suites Chapel Hill/Durham
	 	 	3600 Mt. Moriah Road

Durham, NC 27707
	 	 	Durham County	 
	 	17.

	 	 	Comfort Inn Fayetteville
	 	 	1922 Skibo Road

Fayetteville, NC 28314
	 	 	Cumberland County	 
	 	18.

	 	 	Hampton Inn Jacksonville
	 	 	474 Western Blvd.

Jacksonville, NC 28546
	 	 	Onslow County	 
	 	19.

	 	 	Hilton Garden Inn at RDU Airport
	 	 	1500 RDU Center Drive

Morrisville, NC 27560
	 	 	Wake County	 
	 	20.

	 	 	Comfort Inn Wilmington
	 	 	151 South College Road

Wilmington, NC 28403
	 	 	New Hanover County	 
	 	21.

	 	 	Courtyard by Marriott Winston Salem
	 	 	1600 Westbrook Plaza Drive

Winston Salem, NC 27103
	 	 	Forysth County	 
	 	22.

	 	 	Courtyard by Marriott Houston
	 	 	12401 Katy Freeway

Houston, TX 77079
	 	 	Harris County	 
	 	23.

	 	 	Holiday Inn Express Abingdon
	 	 	940 East Main Street

Abingdon, VA 24210
	 	 	Washington County	 
	 	24.

	 	 	Marriott TownePlace Suites – Austin
	 	 	10024
North Capital of Texas Highway

Austin, Texas
	 	 	Travis County	 
	 	25.

	 	 	Marriott TownePlace Suites – College Station
	 	 	1300
University Drive East

College Station, Texas
	 	 	Brazos County	 
	 	26.

	 	 	Courtyard by Marriott – Houston
	 	 	11050 Louetta Road 126

Houston, Texas
	 	 	Harris County	 
	 	27.

	 	 	Marriott TownePlace Suites – Clear Lake
	 	 	1050
Bay Area Blvd. 95,

Houston, Texas
	 	 	Harris County	 
	 	28.

	 	 	Marriott TownePlace Suites - Houston
	 	 	11040 Louetta Road 128,

Houston, Texas
	 	 	Harris County	 
	 	29.

	 	 	Marriott TownePlace Suites – Birmingham
	 	 	500 Wildwood North Circle

Hoover, Alabama
	 	 	Jefferson County	 
	 















 








SCHEDULE 8.20(2)




OTHER POST-CLOSING REQUIREMENTS




for




FIRST ADDITIONAL PROJECTS




     1. Houston Courtyard by Marriott (11050 Louetta Road). In connection with groundwater
monitoring well placed on the Project by the adjacent property owner, contact the TCEQ and request
notification of the closure date; and ensure that the adjacent property owner or other responsible
party removes or abandons the well in accordance with the requirements of applicable Environmental
Laws and the recommendation of Section 1.0 (Executive Summary) of the Site Assessment, dated May
20, 2005, prepared by IVI International, Inc.





 


 


 


     Exhibit
B and Schedule 2.16 to this Second Amendment have been omitted and
will be furnished supplementally to the Securities and Exchange
Commission upon request.