SECOND AMENDED AND RESTATED ASSIGNMENT AND SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED ASSIGNMENT AND SECURITY AGREEMENT (this
"Assignment") is made as of the 11th day of April 2002 by and between CANDLEWOOD
LEASING NO. 1, INC., a Delaware corporation (the "Assignor"), and HPT CW
PROPERTIES TRUST, a Maryland real estate investment trust (the "Assignee").
W I T N E S S E T H :
WHEREAS, pursuant to an Second Amended and Restated Lease Agreement,
dated as of the date hereof (as amended from time to time, the "Second Amended
and Restated Lease"), the Assignee has leased to the Assignor and the Assignor
has leased from the Assignee certain premises as more particularly described in
and subject to and upon the terms and conditions set forth in the Second Amended
and Restated Lease; and
WHEREAS, as security for the payment and performance of each and every
obligation and liability of the Assignor to the Assignee under the Second
Amended and Restated Lease (collectively, the "Obligations"), including, without
limitation, the payment of the Rent (this and other capitalized terms used and
not otherwise defined herein having the meanings ascribed to such terms in the
Second Amended and Restated Lease), the Assignor has agreed to grant to the
Assignee a first and perfected lien and security interest in the Account (as
hereinafter defined);
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, the Assignor hereby agrees
with the Assignee as follows:
1. Subject to the terms and conditions hereinafter set forth, the
Assignor hereby assigns, transfers, pledges, conveys and grants to the Assignee,
as security for the payment and performance of the Obligations, all of the
right, title and interest of the Assignor in and to State Street Bank and Trust
Company, Account No. ▇▇▇-▇▇▇-▇ (the "Account"), all certificates of deposit,
commercial paper, United States Treasury bills, stocks, bonds and other
documents, instruments and assets held in the Account and any and all
substitutions, replacements and
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renewals thereof and all proceeds of the foregoing (collectively, the
"Collateral").
2. The Assignor agrees promptly to execute and deliver all documents and
instruments deemed necessary by the Assignee to perfect the Assignee's security
interest in the Collateral and, in the event that the Assignor fails to execute
and deliver any such documents and instruments, the Assignor hereby authorizes
the Assignee to execute and deliver the same in the name of the Assignor
pursuant to the power of attorney granted to the Assignee in Paragraph 6 below.
3. Upon the occurrence and during the continuance of an Event of Default
(as defined in the Second Amended and Restated Lease), the Assignee, without
further authorization, may authorize State Street Bank and Trust Company (the
"Investment Manager") to distribute the Collateral to the Assignee (properly
endorsed or assigned to the Assignee), sell, assign, negotiate or otherwise
dispose of the Collateral and may apply all principal, interest and other
proceeds received by the Assignee from time to time with respect to the
Collateral in reduction of the Obligations. Any balance of the Collateral
remaining after such application until payment in full of the Obligations, shall
be and remain the Collateral hereunder.
4. To the extent permitted by law, the Assignor hereby waives any notice
of sale or other disposition of all or any part of the Collateral and the
exercise of any other right or remedy of the Assignee existing after the
occurrence and during the continuance of any Event of Default, and, to the
extent any such notice is required and cannot be waived, the Assignor agrees
that if such notice is given in the manner and to the address or addresses then
required pursuant to this Assignment at least five (5) Business Days (as defined
in the Second Amended and Restated Lease) before the time of the sale or other
disposition, such notice shall be deemed reasonable and shall fully satisfy any
legal requirements for the giving of said notice.
5. The Assignor represents that the Account is the only account in which
deposits of the FF&E Reserve will be made and that, as of the date hereof, the
balance in the Account is ______________________ Dollars ($___________).
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6. Upon the occurrence and during the continuance of an Event of
Default, the Assignor hereby appoints the Assignee as the Assignor's true and
lawful attorney-in-fact to execute all documents and instruments and take all
actions, in the Assignor's name or otherwise, as the Assignee shall deem
necessary or expedient, to cause the Collateral and the proceeds thereof to be
received by the Assignee and to be made available to the Assignee for the
purposes herein specified. The power of attorney hereby granted includes,
without limitation, the right to endorse, in the Assignor's name, to the order
of the Assignee, all checks received by the Assignee as proceeds of the
Collateral, to execute, in the Assignor's name, and to deliver to the Assignee,
all documents and instruments necessary to transfer the Collateral to the
Assignee and to apply the funds received upon the negotiation of such checks or
the sale of any of the Collateral as set forth herein. The power of attorney
contained herein is irrevocable and is coupled with an interest and it shall
terminate upon the payment in full of the Obligations.
7. To the extent permitted by law, the Assignor hereby indemnifies the
Assignee and holds the Assignee harmless from and against all losses, costs,
damages, fees and expenses whatsoever with respect to the exercise of the
foregoing power of attorney and the exercise of the other rights and privileges
granted to the Assignee hereunder, including, without limitation, the right to
use, possess or dispose of the Collateral by the Assignee in accordance with the
terms of this Assignment. The failure or omission of the Assignee's to do any of
the things or exercise any of the rights, interests, powers and authorities
herein shall not be construed to be a waiver of any of such rights, interests,
powers and authorities.
8. The Assignee shall not be obligated to exercise any power or
privilege herein granted and shall not be responsible for failure to do any or
all of the things for which rights, interests, power and authority are hereby
conveyed. The Assignee shall be responsible only for the application of such
cash or other property as the Assignee shall actually receive pursuant to the
terms hereof. The failure or omission of the Assignee to do any of the things or
exercise any of the rights, interests, powers and authorities herein shall not
be construed to be a waiver of any of such rights, interests, powers and
authorities.
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9. The Assignor agrees to execute, upon the Assignee's request, any and
all other and further instruments deemed necessary or desirable by the Assignee
to carry these presents into effect, including, without limitation, a notice in
the form attached hereto as Exhibit A.
10. The Assignor covenants and agrees that, except as otherwise
permitted by the Second Amended and Restated Lease, it will not, at any time
during the term of this Assignment, further convey or encumber the Collateral in
any manner whatsoever; and the Assignor agrees it will do all things necessary
to maintain the enforceability and priority of the Assignee's security interest
in the Collateral.
11. This instrument is a security agreement under the Uniform Commercial
Code and vests in the Assignee, in addition to the other rights and privileges
herein contained, all of the rights, powers and privileges of a secured party
under the Uniform Commercial Code.
12. Whenever any notice, demand or request may, properly be given
hereunder, the same shall always be sufficient if given in the manner and to the
address or addresses then required pursuant to Section 22.10 of the Second
Amended and Restated Lease.
13. This Agreement shall inure to the benefit of the Assignee, its
successors and assigns, and shall be binding upon the Assignor, and its
successors and assigns.
14. This Agreement shall be interpreted, construed, applied and enforced
in accordance with the laws of The Commonwealth of Massachusetts applicable to
contracts between residents of Massachusetts which are to be performed entirely
within Massachusetts, regardless of (i) where this Agreement is executed or
delivered; or (ii) where any payment or other performance required by this
Agreement is made or required to be made; or (iii) where any breach of any
provision of this Agreement occurs, or any cause of action otherwise accrues; or
(iv) where any action or other proceeding is instituted or pending; or (v) the
nationality, citizenship, domicile, principal place of business, or jurisdiction
otherwise would apply the laws of a jurisdiction of organization or
domestication of any party; or (vi) whether the laws of the forum jurisdiction
otherwise would apply the laws of a
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jurisdiction other than Massachusetts; or (vii) any combination of the
foregoing. Notwithstanding the foregoing, the laws of the State shall apply to
the perfection and priority of liens upon and the disposition of any Collateral.
To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the provisions of
this Agreement may be brought and prosecuted in such court or courts located in
The Commonwealth of Massachusetts as is provided by law; and the parties consent
to the jurisdiction of said court or courts located in Massachusetts and to
service of process by registered mail, return receipt requested, or by any other
manner provided by law.
15. THE DECLARATION OF TRUST ESTABLISHING THE ASSIGNEE, A COPY OF WHICH,
TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED WITH THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT
THE NAME "HPT CW PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE ASSIGNEE SHALL BE HELD
TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF OR CLAIM
AGAINST, THE ASSIGNEE. ALL PERSONS DEALING WITH THE ASSIGNEE, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF THE ASSIGNEE FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
[SIGNATURES ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment to be executed under seal as of the day and year first above written.
ASSIGNOR:
CANDLEWOOD LEASING NO. 1, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇
Vice President, Treasurer and
Assistant Secretary
ASSIGNEE:
HPT CW PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
President
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EXHIBIT A
ACCOUNT NOTICE
[See attached copy.]