19.13
Exhibits and Schedules Incorporated
106
Section 19.14
Offsets, Counterclaims and Defenses
106
Section 19.15
Liability of Assignees of Mezzanine Lender
106
Section 19.16
No Joint Venture or Partnership; No Third Party Beneficiaries
107
Section 19.17
Publicity
107
Section 19.18
Waiver of Marshalling of Assets
107
Section 19.19
Waiver of Counterclaim and other Actions
108
Section 19.20
Conflict; Construction of Documents; Reliance
108
Section 19.21
Prior Agreements
108
Section 19.22
Counterparts
109
Section 19.23
Disclosure
109
EXHIBITS AND SCHEDULES
EXHIBIT A
INTENTIONALLY OMITTED
EXHIBIT B
FORM OF PLEDGE ACKNOWLEDGEMENT
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
INTENTIONALLY OMITTED
EXHIBIT L
INTENTIONALLY OMITTED
EXHIBIT M
COUNTERPARTY ACKNOWLEDGMENT
EXHIBIT N
INTENTIONALLY OMITTED
EXHIBIT O
FORM OF INDEPENDENT DIRECTOR CERTIFICATE
EXHIBIT P
INTENTIONALLY OMITTED
EXHIBIT Q
INTENTIONALLY OMITTED
EXHIBIT R
ARTICLE 8 OPT IN LANGUAGE
SCHEDULE I
LITIGATION SCHEDULE
SCHEDULE II
INTENTIONALLY DELETED
SCHEDULE III
PRE-APPROVED TRANSFEREES
SCHEDULE IV
PRE-APPROVED MANAGERS
MEZZANINE LOAN AND SECURITY AGREEMENT
(Senior Mezzanine)
THIS MEZZANINE LOAN AND SECURITY AGREEMENT (Senior Mezzanine), dated as of
February 9, 2005 (as amended, restated, replaced, supplemented or otherwise
modified from time to time, this Agreement), between CNL HOTEL DEL SENIOR MEZZ
PARTNERS, LP, a Delaware limited partnership (Mezzanine Borrower) having an
office 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, 10th Floor, New York,
New York 10005 (together with its successors and assigns, Mezzanine Lender).
W I T N E S S E T H:
WHEREAS, Mezzanine Borrower desires to obtain the Loan (as hereinafter defined)
from Mezzanine Lender;
WHEREAS, Mezzanine Lender is willing to make the Loan to Mezzanine Borrower,
subject to and in accordance with the terms of this Agreement and the other Loan
Documents (Senior Mezzanine) (as hereinafter defined).
NOW, THEREFORE, in consideration of the making of the Loan by Mezzanine Lender
and the covenants, agreements, representations and warranties set forth in this
Agreement, the parties hereto hereby covenant, agree, represent and warrant as
follows:
I.
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1
Definitions
For all purposes of this Agreement, except as otherwise expressly required or
unless the context clearly indicates a contrary intent:
Acceptable Counterparty shall mean a bank or other financial institution
which has a long-term unsecured debt or counterparty rating of "A+" or higher by
S&P and its equivalent by Moody's and, if the counterparty is rated by Fitch, by
Fitch.
Acceptable Management Agreement shall mean, with respect to the Property, a
new or amended management agreement with the Manager which agreement shall be
upon terms and conditions no less favorable in all material respects to the
Mezzanine Borrower, Operating Lessee, and Mezzanine Lender than those contained
in