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Syndicated Credit Agreement

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Sectors: Real Estate
Governing Law: North Carolina, View North Carolina State Laws
Effective Date: September 08, 2003
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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:


3


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 Bo
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