Section 16.8
Grand Wailea Refund Reserve Account
Section 16.9
Letter of Credit Provisions
XVII.
DEFAULTS
Section 17.1
Event of Default
Section 17.2
Remedies
Section 17.3
Remedies Cumulative; Waivers
Section 17.4
Costs of Collection
XVIII.
SPECIAL PROVISIONS
Section 18.1
Exculpation
XIX.
MISCELLANEOUS
Section 19.1
Survival
Section 19.2
Lender's Discretion
Section 19.3
Governing Law
Section 19.4
Modification, Waiver in Writing
Section 19.5
Delay Not a Waiver
Section 19.6
Notices
Section 19.7
Trial By Jury
Section 19.8
Headings
Section 19.9
Severability
iii
Section 19.10
Preferences
Section 19.11
Waiver of Notice
Section 19.12
Expenses; Indemnity
Section 19.13
Exhibits and Schedules Incorporated
Section 19.14
Offsets, Counterclaims and Defenses
Section 19.15
Liability of Assignees of Lender
Section 19.16
No Joint Venture or Partnership; No Third Party Beneficiaries
Section 19.17
Publicity
Section 19.18
Waiver of Marshalling of Assets
Section 19.19
Waiver of Counterclaim and other Actions
Section 19.20
Conflict; Construction of Documents; Reliance
Section 19.21
Prior Agreements
Section 19.22
Counterparts
Section 19.23
Disclosure
iv
EXHIBITS AND SCHEDULES
EXHIBIT A
TITLE INSURANCE REQUIREMENTS
EXHIBIT B
SURVEY REQUIREMENTS
EXHIBIT C
SINGLE PURPOSE ENTITY PROVISIONS
EXHIBIT D
ENFORCEABILITY OPINION REQUIREMENTS
EXHIBIT E
NON-CONSOLIDATION OPINION REQUIREMENTS
EXHIBIT F
COUNTERPARTY OPINION REQUIREMENTS
EXHIBIT G
FORM OF TENANT ESTOPPEL LETTER
EXHIBIT H
BORROWER ORGANIZATIONAL STRUCTURE
EXHIBIT I
INTEREST RATE CAP AGREEMENT REQUIREMENTS
EXHIBIT J
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT K
FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT L
INTENTIONALLY DELETED
EXHIBIT M
COUNTERPARTY ACKNOWLEDGMENT
EXHIBIT N
ARTICLE 8 OPT-IN LANGUAGE
EXHIBIT O
FORM OF INDEPENDENT DIRECTOR CERTIFICATE
EXHIBIT P
FORMS OF PARTIAL RELEASE AND SUBORDINATION TO EASEMENT
EXHIBIT Q
FORM OF TRADEMARK SECURITY AGREEMENT
EXHIBIT R-1 - R-8
RELEASE PARCELS
EXHIBIT S
INTENTIONALLY DELETED
SCHEDULE I
LITIGATION SCHEDULE
SCHEDULE II
APPROVED BASE BUILDING WORK
SCHEDULE III
PRE-APPROVED TRANSFEREES
SCHEDULE IV
ACCEPTABLE PROPERTY MANAGERS
SCHEDULE V
ALLOCATED LOAN AMOUNTS
SCHEDULE VI
INTENTIONALLY OMITTED
SCHEDULE VII
BORROWERS' TAX IDENTIFICATION NUMBERS
SCHEDULE VIII
BORROWERS' OTHER ASSETS
SCHEDULE IX
INTENTIONALLY OMITTED
SCHEDULE X
CARVEOUT TO REPRESENTATION 4.1.29(a)
SCHEDULE XI
CARVEOUT TO REPRESENTATION 4.1.37
SCHEDULE XII
CARVEOUT TO REPRESENTATION 4.1.11
SCHEDULE XIII
FORM OF GROUND LEASE ESTOPPELS
SCHEDULE XIV
REVIEW LETTER
SCHEDULE XV
MEMBERSHIP AGREEMENTS
SCHEDULE XVI
EXISTING PROJECTS
SCHEDULE XVII
SUMMARY OF MEMBERSHIP DEPOSITS
SCHEDULE XVIII
GRAND WAILEA MEMBERSHIP DEPOSITS
v
SCHEDULE XIX
MEMBERSHIP DEPOSITS IN THE MEMBERSHIP DEPOSIT ACCOUNT
SCHEDULE XX
TITLE COMPANY INDEMNITY AGREEMENTS
vi
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT, dated as of August 18, 2004 (as amended,
restated, replaced, supplemented or otherwise modified from time to time, this
Agreement), between CNL RESORT HOTEL, LP, CNL RESORT SILVER PROPERTIES, LP, CNL
GRAND WAILEA RESORT, LP, CNL BILTMORE RESORT, LP, CNL CLAREMONT RESORT, LP, and
CNL DESERT RESORT, LP, each a Delaware limited partnership (each, if
individually, and all if collectively, as the context requires, Borrower) each
having an office at c/o CNL Hotels & Resorts, Inc., Center at City Commons, 450
South Orange Avenue, Orlando, Florida 32801, and GERMAN AMERICAN CAPITAL
CORPORATION, a Maryland corporation, having an address at 60 Wall Street, New
York,