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EXHIBIT 10.19.1
After Recording, Please Return To:
Sutherland Asbill & Brennan LLP
999 Peachtree Street, N.E.
Suite 2300
Atlanta, Georgia 30309-3996
Attn: Nicole L. Friedman, Esq.
Borrower: FelCor Lodging Company, L.L.C.
Loan Number:
FIRST AMENDMENT TO LOAN AGREEMENT AND ANCILLARY LOAN DOCUMENTS
THIS FIRST AMENDMENT TO LOAN AGREEMENT AND ANCILLARY LOAN DOCUMENTS
(this "AGREEMENT") made as of May 28, 1999, is among FELCOR LODGING HOLDING
COMPANY, L.L.C., a Delaware limited liability company, as successor-by-merger to
Bristol Lodging Company, a Delaware corporation ("BORROWER"), having an address
at c/o FelCor Lodging Trust Incorporated, 545 E. John Carpenter Freeway, Suite
1300, Irving, Texas 75062, FelCor Lodging Holding Company, L.L.C., a Delaware
limited liability company, as successor-by-merger to BRISTOL LODGING HOLDING
COMPANY, a Delaware corporation, having an address at 545 E. John Carpenter
Freeway, Suite 1300, Irving, Texas 75062, ("GUARANTOR"), LaSALLE NATIONAL BANK,
AS TRUSTEE FOR NOMURA ASSET SECURITIES CORPORATION COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES SERIES 1998-D6, as assignee of Nomura Asset Capital
Corporation, having its mailing address c/o AMRESCO Services, L.P., 235
Peachtree Street, N.E., Suite 900, Atlanta, Georgia 30303, as administrative
agent and collateral agent (in such capacities, "LENDER").
RECITALS
A. Borrower entered into that certain Promissory Note dated
October 10, 1997 in the amount of $72,500,000 for the benefit of Nomura Asset
Capital Corporation ("Nomura") and that certain Promissory Note dated October
10, 1997 in the amount of $72,500,000 for the benefit of Bankers Trust Company
(collectively the "NOTE"). The Note is secured in part by that certain Deed of
Trust, Assignment of Leases and Rents and Security Agreement dated as of October
10, 1997 from Borrower to Stewart Title Company of Mississippi for the benefit
of Lender securing certain property located at Section 7, Township 5N, in Range
1E, Hinds County, Mississippi (the "DEED OF TRUST"). Borrower, Guarantor, Nomura
and Bankers Trust Company, entered into that certain Loan Agreement dated
October 10, 1997 (the "LOAN AGREEMENT"). The loan evidenced by the Note and
secured by the Deed of Trust is hereinafter referred to as the "LOAN". The Loan
Agreement, the Note, the Deed of Trust and all other documents evidencing or
securing the Loan are hereinafter collectively referred to as the "LOAN
DOCUMENTS".
B. Pursuant to Section 2.4.4 of the Loan Agreement, Borrower
wishes to, and Lender has agreed to permit Borrower to, substitute an Asset (the
"Substitution"). Pursuant thereto, Lender has agreed to release certain property
located in Section 7, Township
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Borrower: FelCor Lodging Company, L.L.C.
Loan Number:
5N, Range 1E, Hinds County, Mississippi (the "Released Property") from the lien
created by the Deed of Trust.
C. In connection with the substitution, Borrower has on even
date herewith executed and delivered to Lender that certain Deed of Trust,
Assignment of Leases and Rents and Security Agreement, from Borrower to Stewart
Title Company of Mississippi for the benefit of Lender, securing certain real
property located in Hinds County, Mississippi (which, along with all other
documentation delivered by Borrower in connection with the Substitution is
referred to collectively as, the "Substitution Loan Documents"). In addition to
the Substitution Loan Documents, Borrower and Lender desire to amend the Loan
Documents to evidence the Substitution and the release of the Released Property.
D. Capitalized terms not otherwise defined herein shall have
the meaning ascribed to them in the Loan Agreements.
AGREEMENTS:
NOW THEREFORE, in consideration of the foregoing recitals (which are
hereby incorporated herein by this reference) and the mutual covenants and
promises of the parties hereto and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. AMENDMENT TO LOAN AGREEMENT.
The Loan Agreement is amended as follows:
a. The following definitions in Section 1 of the Loan
Agreement, and as incorporated by reference in the Loan Documents, shall mean
the following:
i. "Asset" and "Property" as each term is defined in the Loan
Agreement shall hereinafter include the property shown on EXHIBIT A attached
hereto and incorporated herein by this reference (the "Property") and shall
exclude the Released Property;
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Borrower: FelCor Lodging Company, L.L.C.
Loan Number:
ii. "Security Documents" as that term is defined in the Loan
Agreement shall include the Substitution Loan Documents and shall exclude any
Loan Documents to the extent, and only to the extent, that such Loan Documents
relate to the Released Property.
b. All references in each of the Loan Documents to the Loan
Agreement shall mean the Loan Agreement as amended herein.
c. The words "Holiday Inn - Jackson Southwest" on Schedule IV
of the Loan Agreement shall be deleted and the following inserted in lieu
thereof: "Hampton Inn - Jackson".
d. The entry beginning with X-9 on Schedule V of the Loan
Agreement shall be deleted in its entirety and the following inserted in lieu
thereof:
X-9 Hampton Inn Hampton Inn License Agreement by and Hampton Inn
465 Briarwood Drive between Promus Hotels, Inc. and
Jackson, Mississippi Bristol Hotel Tenant Company dated July 24,
1998
e. The entry beginning with X-9 on Schedule VI shall be
deleted in its entirety and the following inserted in lieu thereof:
X-9 Hampton Inn Management Agreement by
465 Briarwood Drive and between Bristol Hotel none none none
Jackson, Mississippi Tenant Company and Bristol
Management, L.P. dated
July 27, 1998
f. The entry beginning with X-9 on Schedule VII of the Loan
Agreement shall be deleted in its entirety and the following inserted in lieu
thereof:
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Borrower: FelCor Lodging Company, L.L.C.
Loan Number:
X-9 Hampton Inn owned in fee simple none
465 Briarwood Drive
Jackson, Mississippi
g. The entry beginning with X-9 on Schedule XVI shall be
deleted in its entirety and the information shown on EXHIBIT B attached hereto
and incorporated herein by this reference shall be inserted in lieu thereof.
2. AMENDMENT TO ENVIRONMENTAL AND HAZARDOUS SUBSTANCE INDEMNIFICATION AGREEMENT:
The Environmental and Hazardous Substance Indemnification Agreement
from Borrower to Lender dated October 10, 1997 is amended as follows:
a. The following sentence shall be added after the word "mortgagee" in
the definition of Mortgages in Section 1.1:
"and that certain Deed of Trust, Assignment of Leases and
Rents and Security Agreement dated May __, 1999, executed by
FelCor Lodging Company, L.L.C., a Delaware limited liability
company, as successor-by-merger to Bristol Lodging Company, a
Delaware corporation, as mortgagor in favor of Lender as
mortgagee,"
3. AMENDMENT TO PLEDGE AND SECURITY AGREEMENT:
The Pledge and Security Agreement from Borrower to Lender dated October
10, 1997 is amended as follows:
All references in the Pledge and Security Agreement to the Loan
Agreement shall mean the Loan Agreement as amended herein.
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Borrower: FelCor Lodging Company, L.L.C.
Loan Number:
4. AMENDMENT TO DEPOSIT ACCOUNT AGREEMENT:
The Deposit Account Agreement from Borrower to Lender dated
October 10, 1997 is amended as follows:
The Deposit Account Agreement shall be modified by adding the legal
description attached hereto as EXHIBIT A and incorporated herein by this
reference to Exhibit A of the Deposit Account Agreement and by deleting the
portion of Exhibit A to the Deposit Account Agreement which describes the
Released Property.
5. DELIVERIES UNDER THE LOAN DOCUMENTS.
(a) Pursuant to Section 2.4.4 of the Loan Agreement, attached hereto as
EXHIBIT C is a copy of the Opinion of Borrower's Counsel, dated as of the
effective date of this Agreement, delivered by Jenkins & Gilchrist, a
Professional Corporation, in connection with the Substitution, regarding
non-consolidation.
(b) Pursuant to Section 2.4.4 of the Loan Agreement, attached hereto as
EXHIBIT D are copies of the written confirmation delivered by each of the Rating
Agencies, stating that the Substitution does not result in a qualification,
withdrawal or downgrading of the Loan or, in the alternative, that said Rating
Agency is satisfied that no further inquiry into the Substitution is necessary.
6. NO DEFAULTS. Borrower hereby represents and warrants that, to its knowledge,
as of the effective date of this Agreement, no monetary or other material
default has occurred and is continuing beyond any applicable grace or notice
period under any of the Loan Documents.
7. NO OFFSETS OR DEFENSES. Borrower hereby acknowledges, confirms and warrants
to Lender that to Borrower's knowledge as of the effective date of this
Agreement, Borrower neither has nor claims any offset, defense, claim, right of
set-off or counterclaim against Lender under, arising out of or in connection
with this Agreement, the Notes, or any of the other Loan Documents.
8. MODIFICATIONS. This Agreement may not be amended, modified or otherwise
changed in any manner except by a writing executed by all of the parties hereto.
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Borrower: FelCor Lodging Company, L.L.C.
Loan Number:
9. SUCCESSORS AND ASSIGNS. This Agreement applies to, inures to the benefit of,
and binds all parties hereof, their heirs, legatees, devisees, administrators,
executors, and permitted successors and assigns.
10. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the
conflict of laws provisions of said State.
11. ENTIRE AGREEMENT. This Agreement the Loan Documents, and the Substitution
Loan Document constitutes all of the agreements among the parties relating to
the matters set forth herein and supersedes all other prior or concurrent oral
or written letters, agreements and understandings with respect to the matters
set forth herein.
12. FULL FORCE AND EFFECT. The Loan Documents as amended hereby remain in full
force and effect.
13. COUNTERPARTS. This Agreement may be signed in any number of counterparts by
the parties hereto, all of which taken together shall constitute one and the
same instrument.
[signatures continued on the following page]
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Borrower: FelCor Lodging Company, L.L.C.
Loan Number:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
under seal, as of the date first written above.
BORROWER:
FELCOR LODGING COMPANY, L.L.C., a
Delaware limited liability company
By: /s/ JOEL M. EASTMAN
----------------------------(SEAL)
Name: Joel M. Eastman
Title: Vice President
STATE OF TEXAS
COUNTY OF DALLAS
Personally appeared before me, the undersigned authority in and for the
said County and State, on this 28 day of May, 1999, within my jurisdiction, the
within named Joel M. Eastman, who acknowledged that he is Vice President of
FelCor Lodging Company, L.L.C. a Delaware limited liability company, and that
for and on behalf of the said limited liability company, and as its act and
deed, he executed the above and foregoing instrument, after first having been
duly authorized by said limited liability company so to do.
/s/ SCARLETT RAY
-------------------------------
NOTARY PUBLIC
My Commission Expires:
7-28-01
- ---------------------
[AFFIX NOTARIAL SEAL]
[NOTARY SEAL]
[signatures continued on the following page]
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Borrower: FelCor Lodging Company, L.L.C.
Loan Number:
GUARANTOR:
FELCOR LODGING HOLDING COMPANY,
L.L.C., a Delaware limited liability company
By: /s/ JOEL M. EASTMAN
----------------------------
Name: Joel M. Eastman
Title: Vice resident
[CORPORATE SEAL]
STATE OF TEXAS
COUNTY OF DALLAS
Personally appeared before me, the undersigned authority in and for the
said County and State, on this 28 day of May, 1999, within my jurisdiction, the
within named Joel M. Eastman, who acknowledged that he is Vice President of
Bristol Lodging Holding Company, L.L.C. a Delaware corporation, and that for and
on behalf of the said limited liability company, and as its act and deed, he
executed the above and foregoing instrument, after first having been duly
authorized by said limited liability company so to do.
/s/ SCARLETT RAY
--------------------------
NOTARY PUBLIC
My Commission Expires:
7-28-01
- -----------------------------
[AFFIX NOTARIAL SEAL]
[NOTARY SEAL]
[signatures continued on the following page]
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Borrower: FelCor Lodging Company, L.L.C.
Loan Number:
LENDER:
LaSALLE NATIONAL BANK, as Trustee for Nomura
Asset Securities Corporation Commercial
Mortgage Pass- Through Certificates Series 1998-D6
By: AMRESCO Services, L.P., its authorized
agent
By: AMRESCO Mortgage Capital, Inc.
its general partner
By:
-----------------------------------
Name:
---------------------------------
Title: Servicing Officer
STATE OF
---------
COUNTY OF
--------
Personally appeared before me, the undersigned authority in and for the
said County and State, on this ____ day of May, 1999, within my jurisdiction,
the within named __________, who acknowledged that he is ______________ of
LaSalle National Bank, as Trustee for Nomura Asset Securities Corporation
Commercial Mortgage Pass-Through Certificates Series 1998-D6, its authorized
agent, and that for and on behalf of the said limited liability company, and as
its act and deed, he executed the above and foregoing instrument, after first
having been duly authorized by said limited liability company so to do.
--------------------------------------
NOTARY PUBLIC
My Commission Expires:
- ----------------------------------
[AFFIX NOTARIAL SEAL]
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Borrower: FelCor Lodging Company, L.L.C.
Loan Number:
CONSENT OF GUARANTORS
FELCOR LODGING HOLDING COMPANY, L.L.C. and BRISTOL LODGING
BEVERAGE as Guarantors do hereby consent to the modification of the Loan, do
hereby agree that such documents constitute a part of the "Loan Documents" as
defined in the Loan Agreement, do hereby agree that the Property is a
Substituted Added Asset and as such is part of the Guaranteed Obligations as
such term is defined in the Guaranty and do hereby agree that the Guaranty and
all Guarantor's obligations thereunder remain in full force and effect.
IN WITNESS WHEREOF, Guarantors have executed this Consent under seal as
of the day and year first above written.
FELCOR LODGING HOLDING COMPANY,
L.L.C., a Delaware corporation
By: /s/ JOEL M. EASTMAN
--------------------------------------
Name: Joel M. Eastman
Title: Vice President
[CORPORATE SEAL]
BRISTOL LODGING BEVERAGE
COMPANY, a Texas corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[CORPORATE SEAL]
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EXHIBIT A
A certain parcel of land being situated in the South One-Half of the Northeast
Quarter of Section 12, Township 6 North, Range 1 East, Jackson, Hinds County,
Mississippi, containing 2.013 acres, more or less, and being more particularly
described as follows:
Commence at an iron rod commonly held to mark the North line of Section 12,
Township 6 North, Range 1 East, being on the line between the East one-half and
the West one-half of said Section 12, said iron rod being 134 feet North of the
Southeast corner of Lot 1, Homewood Subdivision, according to the map or plat
thereof, on file and of record in the office of the Chancery Clerk of Hinds
County of Jackson, Mississippi in Plat Book 4, page 83; from said iron rod, run
thence South 00 degrees 27 minutes West along the aforesaid line between the
East one-half and the West one-half of said Section 12 for a distance of 1,645.6
feet to an iron pin in concrete marking the Southeast corner of Lot 36, Block
"B", Homewood Subdivision, according to the map or plat thereof on file of
record in the office of the Chancery Clerk of Hinds County at Jackson,
Mississippi, in Plat Book 4, at page 76; continue thence South 00 degrees 27
minutes West for a distance of 665.0 feet to a 5/8-inch iron rod which is
described as the Point of Beginning of that certain lease executed by Theo P.
Costas, Jr., et al, to Ashy-Brown, Mississippi Centers recorded in Book 2052 at
Page 488, and an amendment to the description recorded in Book 2212 at page 608;
run thence South 89 degrees 46 minutes East and along the North line of the
property described in said instruments, for a distance of 283.67 feet to an iron
pin on the East line of that certain fifty foot (50) wide easement described in
said instruments; run thence North 00 degrees 27 minutes East along said East
line of a fifty foot (50') wide easement for a distance of 210.0 feet to the
Point of Beginning of the parcel of land herein described; continue thence North
00 degrees 27 minutes East along said East line of the aforesaid fifty foot
(50') wide easement for a distance of 409.165 feet to the intersection of said
East line of the aforesaid fifty foot (50') wide easement with the South
Right-of-Way line of Briarwood Drive (as now laid out and improved, July 1984);
run thence North 89 degrees 23 minutes 32 seconds East along said South
Right-of-Way line of Briarwood Drive for a distance of 172.405 feet to the
Northwest corner of that parcel of property conveyed to Texaco, Inc., and
recorded in Deed Book 1970 at Page 34; leaving said South Right-of-Way line of
Briarwood Drive, run along the West line of that property conveyed to Texaco,
Inc. the following courses and distances: South 00 degrees 02 minutes 13 seconds
East for a distance of 20.245 feet to a point; South 00 degrees 02 minutes 13
seconds East for a distance of 32.96 feet to a point; South 00 degrees 02
minutes 13 seconds East for a distance of 23.96 feet to a point; and South 00
degrees 02 minutes 13 seconds East for a distance of 157.47 feet to a 1/2-inch
rebar found; run thence along the South line of that property conveyed to
Texaco, Inc. the following courses and distances: North 89 degrees 36 minutes 17
seconds East for a distance of 184.18 feet to a point and South 73 degrees 00
minutes 56 seconds East for a distance of 35.43 feet to a point on the West
Right-of-Way line of Interstate Highway No. 55 (as now laid out and improved,
July 1984; run thence South 00 degrees 39 minutes West along said West
Right-of-Way of Interstate Highway No. 55 for a distance of 67.68 feet to a
1/2-inch rebar found the Northeast corner of that parcel of land conveyed to
Franchise Realty Corporation and recorded in Deed Book 2422 at Page 626; leaving
said West Right-of-Way line of Interstate Highway No. 55, run thence North 89
degrees 46 minutes West along the North line of Franchise Realty Interstate
Corporation tract for a distance of 218.27 feet to an iron pin; run thence South
00 39 degrees 00 West along the Franchise Realty Interstate Corporation parcel
for a distance of 100.00 feet to a 1/2-inch rebar found; run thence North 89
degrees 46 minutes West along the North line of Franchise Realty Interstate
Corporation for a distance of 172.47 feet to the Point of Beginning.
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EXHIBIT B
1996 1996
ASSESS ASSESSED MARKET 1996 1996
PROPERTY TYPE JURISDICTION TO PAY RATIO VALUE VALUE TAX RATE TAXES
JACKSON - HAMPTON INN NORTH PP HINDS COUNTY 15.00% 31,966 213,107 16.23300% 5,189
JACKSON - HAMPTON INN NORTH RE HINDS COUNTY 15.00% 389,397 2,595,980 16.23300% 63,211
JACKSON - HAMPTON INN NORTH RE HINDS COUNTY 15.00% 24,713 164,750 16.23300% 4,012
1997 1997
ASSESS ASSESSED MARKET 1997 1997
PROPERTY TYPE JURISDICTION TO PAY RATIO VALUE VALUE TAX RATE ACTUAL
JACKSON - HAMPTON INN NORTH PP HINDS COUNTY 15.00% 45,804 305,360 16.23300% 7,435
JACKSON - HAMPTON INN NORTH RE HINDS COUNTY 15.00% 390,767 2,605,110 16.23300% 63,433
JACKSON - HAMPTON INN NORTH RE HINDS COUNTY 15.00% 24,719 164,790 16.23300% 4,013
1998 1998
ASSESS ASSESSED MARKET 1998 1998
PROPERTY TYPE JURISDICTION TO PAY RATIO VALUE VALUE TAX RATE ACTUAL
JACKSON - HAMPTON INN NORTH PP HINDS COUNTY 15.00% 44,435 296,230 16.29300% 7,240
JACKSON - HAMPTON INN NORTH RE HINDS COUNTY 15.00% 383,973 2,559,820 16.29300% 62,561
JACKSON - HAMPTON INN NORTH RE HINDS COUNTY 15.00% 24,719 164,790 16.29300% 4,027