EXHIBIT 10.41
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FIRST AMENDMENT AND SUPPLEMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of September 6, 2002
Between
THE PARTIES LISTED ON EXHIBIT A ATTACHED HERETO,
as Borrower
and
LASALLE BANK NATIONAL ASSOCIATION, as Trustee for
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 1999-WYN1,
as Lender
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FIRST AMENDMENT AND SUPPLEMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT AND SUPPLEMENT TO AMENDED AND RESTATED LOAN
AGREEMENT, dated as of September 6, 2002 (this "First Amendment"), between
LASALLE BANK NATIONAL ASSOCIATION, as Trustee for BEAR ▇▇▇▇▇▇▇ COMMERCIAL
MORTGAGE SECURITIES INC. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES
1999-WYN1, assignee of BEAR, ▇▇▇▇▇▇▇ FUNDING, INC., a Delaware corporation,
having an address at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Lender"),
and the Parties Listed on Exhibit A attached hereto, each having an address in
care of Wyndham International, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ (each, an "Individual Borrower" and collectively, "Borrower") amends
that certain Amended and Restated Loan Agreement, dated as of November 5, 1999,
between Lender and Borrower (the "Loan Agreement").
W I T N E S S E T H:
WHEREAS, Lender loaned the original principal sum of $346,000,000 (the
"Loan") to Borrower pursuant to the terms and conditions of the Loan Agreement
and evidenced by that certain Promissory Note, dated June 29, 1999, made by
Borrower in favor of Lender (such Promissory Note, together with all extensions,
renewals, replacements, restatements or modifications thereof being hereinafter
referred to collectively as the "Note") and secured, in part, by the Mortgages;
and
WHEREAS, Borrower now wishes to amend the Loan Agreement, and Lender
consents to such amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, Borrower and Lender hereby covenant,
agree, represent and warrant that the Loan Agreement is hereby amended as
follows:
1. The following clause is hereby added to the end of Section 2.4.1(b)
of the Loan Agreement immediately following the words "... the release of the
Individual Property" and immediately preceding the period at the end of such
Section 2.4.1(b):
"; provided, however, notwithstanding the foregoing to the contrary,
if the Individual Property to be released is that certain Individual
Property known as Doubletree Miami, located in Miami, Florida, then
the Debt Service Coverage Ratio for all of the Properties then
remaining subject to the Liens of the Mortgages for the twelve (12)
full calendar months immediately preceding the release of such
Individual Property shall be not less than the Debt Service Coverage
Ratio for all the Properties securing the Loan (including such
Individual Property) for the twelve (12) full calendar months
immediately preceding the release of such Individual Property".
2. Borrower hereby represents and warrants to Lender that as of the
date hereof each of the representations and warranties made by Borrower in the
Loan Documents is
true, complete and accurate in all material respects as set forth therein (it
being understood that any representation or warranty made as of a specified date
shall only be required to be true and correct in all material respects as of
such specified date).
3. Except as specifically amended hereby, all terms, conditions,
provisions and covenants contained in the Loan Agreement shall remain in full
force and effect as written.
4. Unless otherwise defined in this First Amendment, terms defined in
the Loan Agreement or in any of the other Loan Documents shall have their
defined meanings when used herein.
5. This First Amendment shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, legal representatives,
successors and assigns.
6. This First Amendment may be executed in any number of counterparts
with the same effect as if all parties hereto had signed the same document. All
such counterparts shall be construed together and shall constitute one
instrument, but in making proof hereof it shall only be necessary to produce one
such counterpart.
7. This First Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflict of laws and any applicable law of the United States of America.
[NO FURTHER TEXT ON THIS PAGE]
2
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed by their duly authorized representatives, all as
of the day and year first above written.
LENDER:
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee for BEAR ▇▇▇▇▇▇▇ COMMERCIAL
MORTGAGE SECURITIES INC. COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-WYN1
By: ORIX Capital Markets, LLC, its Servicer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Portfolio Manager
BORROWER:
RAVINIA, LLC, a Delaware limited liability company
By: Ravinia Manager Corp., a Delaware
corporation Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
DT-DES PLAINES, LLC, a Delaware limited
liability company
By: DT-Des Plaines Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
DT-MIAMI, L.P., a Delaware limited partnership
By: DT-Miami GP, LLC, a Delaware limited
liability company, General Partner
By: DT-Miami GP Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
DT-TALLAHASSEE, L.P., a Delaware limited
partnership
By: DT-Tallahassee GP, LLC, a Delaware limited
liability company, General Partner
By: DT-Tallahassee GP Manager Corp., a
Delaware corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
H-COLUMBUS, LLC, a Delaware limited liability
company
By: H-Columbus Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
H-DELMAR, LLC, a Delaware limited liability
company
By: H-Delmar Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
H-CLEVELAND, LLC, a Delaware limited liability
company
By: H-Cleveland Manager Corp., a Delaware
corporation Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇-▇▇▇▇, LLC, a Delaware limited liability
company
By: ▇▇▇▇-▇▇▇▇ Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
H-GATEWAY, LLC, a Delaware limited liability
company
By: H-Gateway Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
R-HOUSTON, L.P., a Delaware limited partnership
By: R-Houston GP, LLC, a Delaware limited
liability company, General Partner
By: R-Houston GP Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
MAR-TY, LLC, a Delaware limited liability company
By: Mar-Ty Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
W-BUTTES, LLC, a Delaware limited liability
company
By: W-Buttes Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
W-EMERALD, LLC, a Delaware limited liability
company
By: W-Emerald Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
W-▇▇▇▇▇▇▇▇, ▇.▇., a Delaware limited partnership
By: W-▇▇▇▇▇▇▇▇ ▇▇, LLC, a Delaware limited
liability company, General Partner
By: W-▇▇▇▇▇▇▇▇ ▇▇ Manager Corp., a
Delaware corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
W-INDIANA, LLC, a Delaware limited liability
company
By: W-Indiana Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
W-COLINAS, L.P., a Delaware limited partnership
By: W-Colinas GP, LLC, a Delaware limited
liability company, General Partner
By: W-Colinas GP Manager Corp., a
Delaware corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
W-NOVI, LLC, a Delaware limited liability company
By: W-Novi Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
W-PLEASANTON, LLC, a Delaware limited liability
company
By: W-Pleasanton Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
W-SCHAUMBURG, LLC, a Delaware limited liability
company
By: W-Schaumburg Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
W-WOOD ▇▇▇▇, LLC, a Delaware limited liability
company
By: W-Wood ▇▇▇▇ Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
W-BEL AGE, LLC, a Delaware limited liability
company
By: W-Bel Age Manager Corp., a Delaware
corporation, Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
INDEMNITOR:
WYNDHAM INTERNATIONAL, INC., a Delaware
corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
INDIVIDUAL BORROWERS
INDIVIDUAL BORROWER PROPERTY
Ravinia, LLC, a Delaware limited liability company Crowne Plaza Ravinia
DT-Tallahassee, L.P., a Delaware limited partnership Doubletree Hotel Tallahassee
DT-Miami, L.P., a Delaware limited partnership Doubletree Miami
DT-Des Plaines, LLC, a Delaware limited liability company Doubletree Chicago
W-▇▇▇▇▇▇▇▇, ▇.▇., a Delaware limited partnership Wyndham Garden Franklin
R-Houston, L.P., a Delaware limited partnership Radisson Suites Houston
▇▇▇▇-▇▇▇▇, LLC, a Delaware limited liability company Huntington Hilton
H-Gateway, LLC, a Delaware limited liability company Hilton Newark Gateway
H-Cleveland LLC, a Delaware limited liability company Hilton Inn Cleveland
W-Emerald, LLC, a Delaware limited liability company Wyndham Emerald Plaza
H-Delmar, LLC, a Delaware limited liability company Hilton Del Mar
W-Colinas, L.P., a Delaware limited partnership Wyndham Garden Las Colinas
H-Columbus, LLC, a Delaware limited liability company Hilton Columbus
W-Pleasanton, LLC, a Delaware limited liability company Wyndham Garden Pleasanton
Mar-Ty, LLC, a Delaware limited liability company ▇▇▇▇ Marriott
W-Indiana, LLC, a Delaware limited liability company Wyndham Garden Indianapolis
W-Buttes, LLC, a Delaware limited liability company Wyndham Buttes
W-Schaumburg, LLC, a Delaware limited liability company Wyndham Garden Schaumburg
W-Wood ▇▇▇▇, LLC, a Delaware limited liability company Wyndham Garden Wood ▇▇▇▇
W-Novi, LLC, a Delaware limited liability company Wyndham Garden Novi
W-Bel Age, LLC, a Delaware limited liability company Wyndham Bel Age
EXH. A-1