WINSTON HOTELS INC
EX-10.1 FIFTH AMENDMENT TO SECOND AMENDED AND REST
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<TYPE>EX-10.1
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<FILENAME>g85143exv10w1.txt
<DESCRIPTION>EX-10.1 FIFTH AMENDMENT TO SECOND AMENDED AND REST
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                                                                    EXHIBIT 10.1


                 FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED
                           SYNDICATED CREDIT AGREEMENT

   THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED SYNDICATED CREDIT
AGREEMENT (this "Amendment"), made as of the 8th day of September, 2003, among
WINSTON HOTELS, INC., a North Carolina corporation (the "Company"), WINN LIMITED
PARTNERSHIP, a North Carolina limited partnership (the "Partnership"), WACHOVIA
BANK, NATIONAL ASSOCIATION, as Agent (the "Agent"), and the Banks listed on the
signature pages hereof, as Lenders (the "Banks").

                               W I T N E S S E T H

   WHEREAS, the Company, the Partnership, the Banks and the Agent are parties to
that certain Second Amended and Restated Syndicated Credit Agreement, dated as
of December 19, 2001 (being referred to as the "Original Credit Agreement")
pursuant to which, inter alia, the Banks have agreed to make loans to the
Company and the Partnership on the terms and conditions set forth therein; and

   WHEREAS, the Company, the Partnership, the Banks and the Agent have
previously amended the Original Credit Agreement through that certain First
Amendment to Second Amended and Restated Syndicated Credit Agreement, dated May
28, 2002 (the "First Amendment"), by that certain Second Amendment to Second
Amended and Restated Syndicated Credit Agreement, dated June 28 2002 (the
"Second Amendment"), by that certain Third Amendment to Second Amended and
Restated Syndicated Credit Agreement, dated November 1, 2002 (the "Third
Amendment") and by that certain Fourth Amendment to Second Amended and Restated
Syndicated Credit Agreement, dated June 30, 2003 (the "Fourth Amendment") (the
First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment
and the Original Credit Agreement are collectively referred to as the "Credit
Agreement") (capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement); and

   WHEREAS, the Company and the Partnership have requested that the Banks and
the Agent agree to modify certain provisions of the Credit Agreement, and the
Banks and the Agent have agreed to do so; and

   WHEREAS, the Company, the Partnership, the Banks and the Agent therefore
desire to enter into this Amendment, memorializing the terms and conditions of
the amendments.

   NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree that the Credit Agreement is hereby amended as follows:

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A.       AMENDMENTS

         1.       Amendments to Section 1.01.  Section 1.01 is amended as
                  follows:

         (a)      The following new definition is hereby added to Section 1.01:

         "Loan Assets" means any notes receivable from, or loans or advances to,
         unaffiliated third party borrowers secured by mortgages, equity
         interests in special purpose entities that own real estate assets,
         certificates of interests in real estate mortgage investment conduits
         or other real estate or real estate related collateral (collectively,
         "Loan Assets").

         (b)      The definition of "Total Value" is deleted and the following
                  is substituted in lieu thereof:

         "Total Value" means, as of each Measurements Date, the sum of (a) all
         Cash Equivalents then held by the Borrower and its Consolidated
         Subsidiaries, plus (b) for Stabilized Hotels, their aggregate
         Capitalized Value, plus (c) for Non-Stabilized Hotels, their aggregate
         Hotel Cost, plus (d) the aggregate amount of investments in, and loans
         and advances of the Borrower and its Consolidated Subsidiaries (other
         than Loan Assets) to, Joint Ventures or Development Parties as
         reflected on the balance sheet of the Borrower and its Consolidated
         Subsidiaries, according to GAAP (net of any amounts owed by the
         Borrower or any of its Consolidated Subsidiaries to such Joint Ventures
         or Development Parties), plus (e) the aggregate book value of all Loan
         Assets, as reflected on the balance sheet of the Borrower and its
         Consolidated Subsidiaries, according to GAAP, plus (f) but without
         duplication of amounts set out in (d), the aggregate amount of all
         unfunded capital contribution commitments or obligations of the
         Borrower and its Consolidated Subsidiaries to any Joint Ventures or
         Development Parties, and all obligations to make credit available to
         any such Joint Venture or Developments Party, that is equal to the
         undrawn balance of any outstanding Facility Letters of Credit issued
         for the purpose of guaranteeing the Borrower's capital contribution
         commitment to such Joint Venture or Development Party."

         2.       Amendment to Section 2.01(b). Section 2.01(b) of the Credit
                  Agreement is deleted, and the following is substituted in lieu
                  thereof:

         "(b) Maximum Advance. The maximum amount of credit available to be
         drawn upon from time to time under this Agreement, determined as of
         each Measurement Date and being effective as set out in Section
         2.01(c), but in no event to exceed the Facility Limit (the "Maximum
         Advance"), is the product of (a) 60% and (b) the sum of (i) the Total
         Cost of each Non-Stabilized Borrowing Base Hotel, and (ii) the
         Capitalized Value of each Stabilized Borrowing Base Hotel, less (iii)
         the FF&E Deficiency."

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         3.       Amendments to Article VI. Article VI of the Credit Agreement
                  is amended as follows:


         (a)      Section 6.06 of the Credit Agreement is deleted, and the
                  following is substituted in lieu thereof:

         "SECTION 6.06. Limitations on Investments in Ventures and Loans to
         Development Parties. Investments in, advances to, and loans to any
         Joint Venture, to any Development Party, or to any other entity other
         than a Wholly Owned Subsidiary shall not exceed, as of any Measurement
         Date, 30% of Total Value for so long as any Loan Assets are held by the
         Borrower; provided, that investments in, advances to, and loans to any
         Joint Venture, to any Development Party, or to any other entity shall
         not exceed, as of any Measurement Date, 20% of Total Value from and
         after the time that the Borrower contributes all of its Loan Assets to
         a Wholly Owned Subsidiary."

         (b)      The following new sections are hereby added to Article VI:

         "SECTION 6.17. Limitations on Borrowing Base Value. At no time shall
         the Company or the Partnership permit:

         (a) the Borrowing Base Value to be less than $125,000,000;

         (b) less than 40% of the Borrowing Base Value to be represented by
         Borrowing Base Hotels under brands affiliated with Marriott or Hilton
         Hotels; and

         (c) more than 35% of the Borrowing Base Value to be geographically
         concentrated in Borrowing Base Hotels located in the same Metropolitan
         Statistical Area.

         SECTION 6.18. Limitation on Value of Loan Assets. At no time shall the
         total book value of the Loan Assets held directly or indirectly by the
         Borrower exceed $250,000,000.

         SECTION 6.19. Foreign Investments Prohibited. The Borrower and its
         Consolidated Subsidiaries shall be prohibited from investing in any
         Hotel located outside of the United States of America."

         4.       Amendment to Article VII. Article VII of the Credit Agreement
                  is amended by adding the following new section:

         "SECTION 7.07. Notwithstanding anything to the contrary contained
         herein, the calculations with respect to the financial covenants set
         forth in Article VII or with respect to negative covenants set forth in
         Article VI shall not take into account (a) any of Borrower's Loan
         Assets that are contributed to or held by a Wholly Owned Subsidiary or
         any liabilities relating thereto or (b) any changes in GAAP Financial
         Accounting Standards Board (FASB) Interpretation No. 45 or 46 or
         Financial Accounting Standard 150."

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B.       CONDITIONS PRECEDENT

   The effectiveness of this Amendment is conditioned upon the following
conditions having been satisfied:

         1. The Agent shall have received from the Company and the Partnership a
sufficient number of duly executed original signature page counterparts of this
Amendment so that the Banks required under the terms of the Credit Agreement to
effect this Amendment may each receive one such original.

         2. All corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all other documents
incident thereto or delivered in connection therewith shall be reasonably
satisfactory in form and substance to each Bank.

         3. The Agent shall have received a fee, payable in immediately
available funds, in the amount of 0.39% of the Facility Amount, with 0.35% paid
to the Banks in accordance with their respective Commitment amounts.

C.       MISCELLANEOUS.

         1. Nothing in this Amendment shall be construed to constitute a
novation of the indebtedness evidenced by the Credit Agreement or any other
indebtedness arising under the Loan Documents related thereto, or to release,
satisfy, discharge or otherwise affect or impair in any manner whatsoever (i)
the validity or enforceability of the indebtedness evidenced by the Credit
Agreement; (ii) the charges, liens, pledges, security interests, assignments and
conveyances affected by the Loan Documents or any other agreement securing the
indebtedness evidenced by the Credit Agreement, or the priority thereof; (iii)
the liability of the Company and the Partnership under the Credit Agreement and
all other Loan Documents or any other person that may now or hereafter be liable
under the Credit Agreements and the other Loan Documents or any agreements
securing the same; and (iv) any other security or instrument now or hereafter
held by the Agent or the Banks as security for or as evidence of any of the
indebtedness evidenced by the Credit Agreement. Without limiting the foregoing,
the Agent and the Banks hereby reserve any and all legal rights and remedies
available to them at law, in equity, under the Credit Agreement and all other
Loan Documents.

         2. The Company and the Partnership shall pay all reasonable out of
pocket costs, expenses, taxes, and fees incurred by the Agent and the Banks in
connection with the negotiation, preparation, execution and delivery of this
Amendment, and all other documents and certificates executed in connection
herewith, including without limitation the disbursements and reasonable
professional fees of counsel to the Agent.

         3. The Company and the Partnership agree to indemnify, protect and save
harmless the Agent and each bank, and all directors, officers, employees and
agents of the Agent and each bank, from and against any and all (i) claims,
demands and causes of action of any nature whatsoever brought by any person or
entity not a party to this Amendment and arising from or related to or incident
to this Amendment or any other Loan Document, (ii) costs and expenses incident
to the defense of such claims, demands and causes of action, including without

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limitation attorneys' fees, and (iii) liabilities, judgments, settlements
(provided the Company and the Partnership have expressly consented in writing to
any such settlement), penalties and assessments arising from such claims,
demands and causes of action, provided such claims, costs and liabilities are
not the result of the gross negligence or willful misconduct of the Agent or
such Bank. The indemnity contained in this Section shall survive the termination
of the Credit Agreement, as amended hereby.

         4. Except as expressly set forth herein, this amendment shall be deemed
not to waive or modify any provision of the Credit Agreement, and all terms of
the Credit Agreement, as amended hereby, shall be and shall remain in full force
and effect and shall constitute legal, valid, binding and enforceable
obligations of the Company and the Partnership to the Agent and the Banks. All
references to the Credit Agreement shall hereinafter be references to the Credit
Agreement as amended by this Amendment.

         5. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NORTH CAROLINA AND ALL APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.

         6. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same document.

         7. This Amendment shall be binding on, and shall inure to the benefit
of, the successors and assigns of each party to the Credit Agreement, as amended
hereby.

         8. In the event that any part of this Amendment shall be found to be
illegal or in violation of public policy, or for any reason unenforceable at
law, such finding shall not invalidate any other part thereof.

         9. TIME IS OF THE ESSENCE UNDER THIS AGREEMENT.

         10. The parties agree that their signatures by telecopy or facsimile
shall be effective and binding upon them as though executed in ink on paper but
that the parties shall exchange original ink signatures promptly following any
such delivery by telecopy or facsimile.

         11. The Banks listed on the signature pages hereof constitute the
Required Banks (as defined under the Credit Agreement).



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   IN WITNESS WHEREOF, the Company, the Partnership, the Banks, and the Agent
have caused this Amendment to be executed under seal by their duly authorized
officers the day and year first above written.

                                           WACHOVIA BANK, NATIONAL ASSOCIATION,
                                           as Agent and as a Bank


                                           By: /s/ David Hoagland
                                               ---------------------------------
                                                   Vice President



                                           BRANCH BANKING AND TRUST COMPANY,
                                           as a Bank


                                           By: /s/ Holger Ebert
                                               ---------------------------------
                                                   Senior Vice President




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                                           RBC CENTURA BANK,
                                           as a Bank


                                           By:
                                               ---------------------------------
                                                   Vice President



                                           SOUTHTRUST BANK,
                                           as a Bank


                                           By:
                                               ---------------------------------
                                                   Senior Vice President




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                                           WINSTON HOTELS, INC.


                                           By: /s/ Joseph V. Green
                                               ---------------------------------
                                                   Executive Vice President



                                           WINN LIMITED PARTNERSHIP, a North
                                           Carolina limited partnership  (SEAL)

                                           By: WINSTON HOTELS, INC.,
                                               General Partner


                                           By: /s/ Joseph V. Green
                                               ---------------------------------
                                                   Executive Vice President






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