EXHIBIT 10.1
AGREEMENT TO ASSIGN, RELEASE, FRANCHISE, MANAGE
THIS AGREEMENT TO ASSIGN, RELEASE, FRANCHISE, MANAGE (this "Agreement")
is entered into effective as of June 15, 2001 (the "Effective Date") by and
among HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust
("HPT"), HPTMI PROPERTIES TRUST, a Maryland real estate investment trust
("HPTMI"), HPTMI HAWAII, INC., a Delaware corporation ("HPTMI Hawaii"), HPT TRS
MI-135, INC., a Delaware corporation (the "New Tenant"), MARRIOTT INTERNATIONAL,
INC., a Delaware corporation ("MI"), CR14 TENANT CORPORATION, a Delaware
corporation ("CR14"), CRTM17 TENANT CORPORATION, a Delaware corporation
("CRTM17" and, together with CR14, collectively, the "Initial Tenants"),
COURTYARD MANAGEMENT CORPORATION, a Delaware corporation ("Courtyard"), MARRIOTT
HOTEL SERVICES, INC., a Delaware corporation ("Full Service Manager"), RESIDENCE
INN BY MARRIOTT, INC., a Delaware corporation ("Residence Inn"), SPRINGHILL SMC
CORPORATION, a Delaware corporation ("SpringHill"), TOWNEPLACE MANAGEMENT
CORPORATION, a Delaware corporation ("TownePlace"; and, together with Courtyard,
Full Service Manager, Residence Inn and SpringHill, collectively, the
"Managers").
W I T N E S S E T H:
WHEREAS, pursuant to those certain fourteen (14) lease agreements which
are further described on Exhibit A-1 attached hereto and made a part hereof
(collectively, the "CR14 Leases"), HPTMI leases to CR14, and CR14 leases from
HPTMI, certain properties as further described on Exhibit B-1 attached hereto
and made a part hereof (the "CR14 Properties"), subject to and upon the terms
and conditions set forth in the CR14 Leases; and
WHEREAS, pursuant to those certain seventeen (17) lease agreements
which are further described on Exhibit A-2 attached hereto and made a part
hereof (collectively, the "CRTM 17 Leases" and, together with the CR14 Leases,
as the same shall be amended pursuant to the terms hereof, collectively, the
"Initial Leases"), HPTMI (as successor-in-interest to HPTMI III Properties Trust
pursuant to those certain Articles of Merger which were filed on June 14, 2001)
leases to CRTM17, and CRTM17 leases from HPTMI, certain properties as further
described on Exhibit B-2 attached hereto and made a part hereof (the "CRTM17
Properties"; and, together with the CR14 Properties, collectively, the "Initial
Properties"), subject to and upon the terms and conditions set forth in the
CRTM17 Leases; and
WHEREAS, pursuant to that certain Purchase and Sale Agreement, dated as
of the Effective Date, by and among Courtyard, SpringHill and TownePlace, as
sellers, and HPT, as purchaser (as the same may be amended, restated,
supplemented or otherwise modified from time to time as therein provided, the
"Limited Service Purchase Agreement"), HPT agreed to purchase from Courtyard,
SpringHill and TownePlace, and Courtyard, SpringHill and TownePlace agreed to
sell to HPT, three (3) additional properties as further described on Exhibit C-1
attached hereto and made a part hereof (the "Additional Limited Service
Properties"), subject to and upon the terms and conditions set forth in the
Limited Service Purchase Agreement; and
WHEREAS, pursuant to that certain Purchase and Sale Agreement, dated as
of the Effective Date, by and between Marriott Kauai, Inc., a Delaware
corporation ("Marriott Kauai" and, together with Courtyard, SpringHill and
TownePlace, collectively, the "Sellers"), as seller, and HPT, as purchaser (as
the same may be amended, restated, supplemented or otherwise modified from time
to time as therein provided, the "Kauai Purchase Agreement" and, together with
the Limited Service Purchase Agreement, collectively, the "Purchase
Agreements"), HPT agreed to purchase one (1) additional property as described in
Exhibit C-2 attached hereto and made a part hereof (the "Kauai Property" and,
together with the Additional Limited Service Properties, collectively, the
"Additional Properties"), subject to and upon the terms and conditions set forth
in the Kauai Purchase Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of the Effective Date, by and between HPT and HPTMI, HPT has assigned
to HPTMI all of HPT's right, title and interest under the Limited Service
Purchase Agreement, and HPTMI has agreed to assume all of HPT's obligations
under the Limited Service Purchase Agreement, subject to and upon the terms and
conditions set forth in such Assignment and Assumption Agreement; and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of the Effective Date, by and between HPT and HPTMI Hawaii, HPT has
assigned to HPTMI Hawaii all of HPT's right, title and interest under the Kauai
Purchase Agreement, and HPTMI Hawaii has agreed to assume all of HPT's
obligations under the Kauai Purchase Agreement, subject to and upon the terms
and conditions set forth in such Assignment and Assumption Agreement; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, HPTMI and HPTMI Hawaii have agreed to lease to the New
Tenant, and the New Tenant has agreed to lease from HPTMI and HPTMI Hawaii, the
Additional Properties, subject to and upon the terms and conditions hereinafter
set forth; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, HPTMI and the Initial Tenants have agreed to amend the
Initial Leases, subject to and upon the terms and conditions set forth in this
Agreement; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, the Initial Tenants have agreed to assign the Initial
Leases to the New Tenant, the New Tenant has agreed to accept such assignment
from the Initial Tenants and HPTMI has agreed to consent to such assignment and
to release the Initial Tenants from their liabilities and obligations under the
Initial Leases, subject to and upon the terms and conditions set forth in this
Agreement; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, HPTMI, HPTMI Hawaii and the New Tenant have agreed to amend
the Additional Leases and to further amend the Initial Leases, subject to and
upon the terms and conditions set forth in this Agreement; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, the New Tenant has agreed to engage the Managers to manage,
and the Managers
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have agreed to be engaged to manage, the Properties that are leased by the New
Tenant, subject to and upon the terms and conditions set forth in this
Agreement; and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreements, MI and the New Tenant have agreed that in the event that
any of the Managers shall no longer manage a Property, such Property shall
continue to be operated as a Marriott brand hotel;
WHEREAS, in connection with the transactions contemplated the Purchase
Agreements, the HPT Parties and the Marriott Parties have agreed to enter into
various other agreements in order to accomplish all of the foregoing;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Purchase Agreements, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth below, in the Purchase
Agreements and/or the Initial Leases, as applicable.
(a) "Additional Leases" shall mean those certain Lease
Agreements, dated as of the Effective Date, by and between HPTMI and
the New Tenant, with respect to the Additional Properties, as the same
may be amended, restated, supplemented or otherwise modified from time
to time as therein provided.
(b) "Additional Limited Service Properties" shall have the
meaning ascribed thereto in the recitals to this Agreement.
(c) "Additional Properties" shall have the meaning ascribed
thereto in the recitals to this Agreement.
(d) "Agreement" shall mean this Agreement to Assign, Release,
Franchise and Manage, together with Exhibits A through I, as the same
may be amended, restated, supplemented or otherwise modified from time
to time as herein provided.
(e) "Agreement to Lease (Kauai)" shall mean that certain
Agreement to Lease (Kauai), dated as of the Effective Date, by and
between HPTMI Hawaii and MI, as the same may be amended, restated,
supplemented or otherwise modified from time to time as herein
provided.
(f) "Amendment to Initial Leases" shall mean that certain
Amendment to Initial Leases, dated as of the Effective Date, by and
among HPTMI and the Initial Tenants, with respect to the Initial
Leases.
(g) "Amendment to Closing Leases" shall mean that certain
Amendment to Closing Leases, substantially in the form attached hereto
as Exhibit D, to be entered into by and between HPTMI and/or HPTMI
Hawaii (as applicable) and Tenant with respect to the Properties which
are closing on such Closing Date.
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(h) "Apportionment Time" shall have the meaning ascribed
thereto in Section 17(a) to this Agreement.
(i) "Assignment Agreement" shall mean an Assignment and
Assumption -Agreement, substantially in the form attached hereto as
Exhibit E, to be entered into by and between CR14 and/or CRTM 17 (as
applicable) and the New Tenant with respect to the Initial Properties
which are closing on such Closing Date.
(j) "CR14" shall have the meaning ascribed thereto in the
preamble to this Agreement.
(k) "CR14 Leases" shall have the meaning ascribed thereto in
the recitals to this Agreement.
(l) "CR14 Properties" shall have the meaning ascribed thereto
in the recitals to this Agreement.
(m) "CRTM17" shall have the meaning ascribed thereto in the
preamble to this Agreement.
(n) "CRTM17 Leases" shall have the meaning ascribed thereto in
the recitals to this Agreement.
(o) "CRTM17 Properties" shall have the meaning ascribed
thereto in the recitals to this Agreement.
(p) "Closing" shall mean the consummation of the within
transactions with respect to any Property.
(q) "Closing Date" shall mean the date of any Closing with
respect to any Property under this Agreement. Each Closing Date shall
occur on the last day of an Accounting Period.
(r) "Courtyard" shall have the meaning ascribed thereto in the
preamble to this Agreement.
(s) "Effective Date" shall have the meaning ascribed thereto
in the preamble to this Agreement.
(t) "FF&E" shall have the meaning ascribed thereto in the
Management Agreements.
(u) "First Closing Date" shall mean the first Closing Date
under this Agreement, which shall also be the date hereof.
(v) "First Closing Initial Leases" shall mean the Initial
Leases which are being assigned on the First Closing Date.
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(w) "First Closing Initial Properties" shall mean the Initial
Properties which are closing on the First Closing Date.
(x) "First Closing Leases" shall mean, collectively, the
Additional Leases and the First Closing Initial Leases.
(y) "First Closing Properties" shall mean, collectively, the
Additional Properties and the First Closing Initial Properties.
(z) "Fixed Asset Supplies" shall have the meaning ascribed
thereto in the Management Agreements.
(aa) "Franchise Agreement" shall mean, with respect to each
Property (other than the Kauai Property), a Franchise Agreement
substantially identical in form and substance to the Franchise
Agreements identified on Exhibit F attached hereto (as the same may be
modified in accordance with the standards of the applicable hotel
brand), to be entered into at or prior to the Closing for such
Property, by and between MI and the New Tenant, as the same may be
amended, restated, supplemented or otherwise modified from time to time
as therein provided. There shall be no Franchise Agreement for the
Kauai Property.
(bb) "HPT" shall have the meaning ascribed thereto in the
preamble to this Agreement.
(cc) "HPT Guaranty" shall mean that certain Guaranty
Agreement, dated as of the Effective Date, made by HPT for the benefit
of the MI and the Managers, as the same may be amended, restated,
supplemented or otherwise modified from time to time as therein
provided.
(dd) "HPT Parties" shall mean HPT, HPTMI, HPTMI Hawaii and the
New Tenant.
(ee) "HPTMI" shall have the meaning ascribed thereto in the
preamble to this Agreement.
(ff) "HPTMI Hawaii" shall have the meaning ascribed thereto in
the preamble to this Agreement.
(gg) "Holdback Agreement" shall mean that certain Holdback and
Security Agreement, dated as of the Effective Date, by and among MI,
the Initial Tenants, HPTMI, HPTMI Hawaii and the New Tenant, as the
same may be amended, restated, supplemented or otherwise modified from
time to time as therein provided.
(hh) "Initial Leases" shall have the meaning ascribed thereto
in the recitals to this Agreement, as the same may be amended,
restated, supplemented or otherwise modified from time to time as
therein or herein provided.
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(ii) "Initial Properties" shall have the meaning ascribed
thereto in the recitals to this Agreement.
(jj) "Initial Tenants" shall have the meaning ascribed thereto
in the preamble to this Agreement.
(kk) "Inventories" shall have the meaning ascribed thereto in
the Management Agreements.
(ll) "Kauai Owner Agreement" shall mean that certain Owner
Agreement, dated as of the Effective Date, by and among HPTMI Hawaii,
the New Tenant and MI with respect to the Kauai Property, as it may be
amended, restated, supplemented or otherwise modified from time to time
as herein or therein provided.
(mm) "Kauai Property" shall have the meaning ascribed thereto
in the recitals to this Agreement.
(nn) "Kauai Purchase Agreement" shall have the meaning
ascribed thereto in the recitals to this Agreement.
(oo) "Leases" shall mean, collectively, the Additional Leases
and the Initial Leases.
(pp) "Limited Rent Guaranty" shall mean that certain Limited
Rent Guaranty, dated as of the Effective Date, made by MI in favor of
HPTMI, as the same may be amended, restated, supplemented or otherwise
modified from time to time as therein or herein provided.
(qq) "MI" shall have the meaning ascribed thereto in the
preamble to this Agreement.
(rr) "MI Guaranty" shall mean the Guaranty Agreement, dated as
of the Effective Date, made by MI in favor of the New Tenant, as the
same may be amended, restated, supplemented or otherwise modified from
time to time as therein or herein provided.
(ss) "Management Agreement" shall mean, with respect to each
hotel brand being operated at the Leased be modified in accordance with
the standards of the applicable hotel brand), to be entered into at or
prior to the Closing for the first hotel being operated as the hotel
brand to which such Management Agreement pertains, by and between the
New Tenant and the applicable Manager, as the same may be confirmed,
amended, restated, supplemented or otherwise modified from time to time
as herein or therein provided. There shall be one such Management
Agreement between each Manager and the New Tenant (except that there
shall be two such Management Agreements between Full Service Manager
and the New Tenant, one of which shall pertain exclusively to the Kauai
Property).
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(tt) "Managers" shall have the meaning ascribed thereto in the
preamble to this Agreement.
(uu) "Marriott Parties" shall mean MI, the Initial Tenants and
the Managers.
(vv) "Marriott Parties' Knowledge Group" shall mean ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and the acting general manager with respect any Property.
(ww) "New Tenant" shall have the meaning ascribed thereto in
the preamble to this Agreement.
(xx) "Owner Agreement" shall mean that certain Owner
Agreement, dated as of the Effective Date, by and among HPTMI, the New
Tenant and MI with respect to the Properties for which a Closing has
occurred (other than the Kauai Property), as it may be amended,
restated, supplemented or otherwise modified from time to time as
herein or therein provided.
(yy) "Pooling Agreement" shall mean that certain Pooling
Agreement, dated as of the Effective Date, by and among MI, the
Managers, ▇▇▇▇, ▇▇▇▇▇▇, and the New Tenant, as it may be amended,
restated, supplemented or otherwise modified from time to time as
herein or therein provided.
(zz) "Property" shall mean any one of the Initial Properties
or the Additional Properties.
(aaa) "Purchase Agreements" shall have the meaning ascribed
thereto in the recitals to this Agreement, as they may be amended,
restated, supplemented or otherwise modified from time to time as
herein or therein provided.
(bbb) "Reserve" shall have the meaning ascribed thereto in the
Leases.
(ccc) "Residence Inn" shall have the meaning ascribed thereto
in the preamble to this Agreement.
(ddd) "Sellers" shall have the meaning ascribed thereto in the
preamble to this Agreement.
(eee) "SpringHill" shall have the meaning ascribed thereto in
the preamble to this Agreement.
(fff) "Termination Agreement" shall mean, with respect to each
Initial Property, the Termination Agreement, substantially in the form
attached hereto as Exhibit H, to be entered into at or prior to the
Closing Date for such Initial Property, by and among HPTMI, MI and CR14
or CRTM17 (as applicable).
(ggg) "TownePlace" shall have meaning ascribed thereto in the
preamble to this Agreement.
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(hhh) "True-up" shall have the meaning ascribed thereto in
Section 18(b) to this Agreement.
(iii) "Working Capital" shall have the meaning ascribed
thereto in the Management Agreements.
2. Agreement to Amend Initial Leases and Related Agreements. Subject to
and upon the terms and conditions hereinafter set forth, HPTMI and the Initial
Tenants each hereby agree to amend the Initial Leases in accordance with the
terms and conditions of the Amendment to Initial Leases. On the First Closing
Date, HPTMI and the Initial Tenants shall execute and deliver the Amendment to
Initial Leases.
3. Agreement to Assign and Related Agreements.
(a) Subject to and upon the terms and conditions hereinafter
set forth, the Initial Tenants each hereby agree to assign all of their
right, title and interest in and to each of the Initial Leases to the
New Tenant, the New Tenant agrees to assume the Initial Tenants'
obligations and liabilities under the Initial Leases and HPTMI hereby
agrees to consent to such assignment and to release the Initial Tenants
from their obligations and liabilities under the Initial Leases, in
each case in accordance with the terms and conditions of this Agreement
and the applicable Assignment Agreement.
(b) On the First Closing Date, the Initial Tenants, the New
Tenant and HPTMI shall execute and deliver an Assignment Agreement with
respect to the Initial Leases listed on Exhibit A-3 hereto (the "First
Closing Initial Leases").
(c) The assignment for each of the other Initial Leases (other
than the First Closing Initial Leases) shall take place on one or more
subsequent Closing Dates, which subsequent Closing Dates shall be
designated in writing by the Assignors to Assignee, which date shall
not be less than ten (10) Business Days after the date on which the
Assignors give such notice. Notwithstanding the foregoing, the parties
agree that the Closing Date with respect to each Initial Lease shall
occur on or before June 30, 2004. On each subsequent Closing Date, CR14
and/or CRTM17 (as applicable), the New Tenant and HPTMI shall execute
and deliver an Assignment Agreement with respect to the Initial
Properties which are being assigned on such subsequent Closing Date.
4. Agreement to Lease and Related Agreements. Subject to and upon the
terms and conditions hereinafter set forth, HPTMI and HPTMI Hawaii hereby agree
to lease the Additional Properties to the New Tenant, and the New Tenant hereby
agrees to lease the Additional Properties from HPTMI and HPTMI Hawaii, in
accordance with the terms and conditions of the Additional Leases. On the First
Closing Date, HPTMI or HPTMI Hawaii (as applicable), and the New Tenant shall
execute and deliver an Additional Lease with respect to each Additional
Property.
5. Agreement to Amend Closing Leases and Related Agreements. Subject to
and upon the terms and conditions hereinafter set forth, HPTMI, HPTMI Hawaii and
the New Tenant each hereby agree to amend the Additional Leases and the Initial
Leases which have been
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assigned to New Tenant in accordance with the terms and conditions of the
Amendment to Closing Leases. On the First Closing Date, HPTMI and the New Tenant
shall execute and deliver an Amendment to Closing Leases with respect to the
First Closing Leases. On each subsequent Closing Date, HPTMI and the New Tenant
shall execute and deliver an Amendment to Closing Leases with respect to the
Initial Leases which are being assigned on such subsequent Closing Date.
6. Agreement to Franchise and Related Agreements. Subject to and upon
the terms and conditions hereinafter set forth, and to the extent that the
Management Agreement for any Property is terminated, MI and the New Tenant
desire that the New Tenant operate such Property (other than the Kauai Property)
in accordance with the terms and conditions of a Franchise Agreement. On the
First Closing Date, the New Tenant and MI shall execute and deliver a Franchise
Agreement with respect to each of the First Closing Properties (except for the
Kauai Property). On each subsequent Closing Date, the New Tenant and MI shall
enter into a Franchise Agreement with respect to each Initial Property under
each Initial Lease which is being assigned on such subsequent Closing Date.
7. Agreement to Manage and Related Agreements. Subject to and upon the
terms and conditions hereinafter set forth, the New Tenant agrees to engage each
Manager to manage certain of the Properties, and each Manager agrees to be
engaged to manage certain of the Properties, in accordance with the terms and
conditions of the applicable Management Agreement. On the First Closing Date,
the New Tenant and each applicable Manager shall enter into a Management
Agreement with respect to each brand of Marriott hotel that is being operated on
the First Closing Properties. On each subsequent Closing Date, the New Tenant
and each applicable Manager shall enter into a Management Agreement or a
confirmation of Management Agreement (as applicable) with respect to each brand
of Marriott hotel that is being operated on each Initial Property then closing
on such subsequent Closing Date.
8. Agreement to Transfer Liquor Licenses. Promptly following the
Closing Date for each Property, MI shall cause the liquor license for such
Property to be transferred to the Manager for such Property. The Initial Tenants
and the New Tenant each agree to cooperate with MI in connection with such
transfers. Any expenses associated with such transfers shall be paid by the
applicable Manager at its sole cost and expense and shall not be treated as a
Deduction under the Management Agreements or the Pooling Agreement.
9. Representations of HPT. The HPT Parties hereby represent and warrant
that, as of the First Closing Date (which is the date hereof) and each
subsequent Closing Date hereunder:
(a) Status and Authority of HPT. HPT is a real estate
investment trust duly organized, validly existing and in good standing
under the laws of the State of Maryland, having all requisite power and
authority to carry on its business as such business is presently being
conducted and to enter into this Agreement and the other documents
described in this Agreement to which it is a party and to consummate
the transactions contemplated hereby and thereby.
(b) Action of HPT. HPT has taken all necessary action under
its charter documents to authorize the execution, delivery and
performance of this Agreement and
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the other documents described in this Agreement to which it is a party,
this Agreement, and such other documents constitute, or will upon
execution constitute, the valid and binding obligations and agreements
of HPT, enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws of general applicability affecting the
rights and remedies of creditors and moratorium laws from time to time
in effect, and except to the extent that the availability of equitable
relief may be subject to the discretion of the court before which any
proceeding therefor might be brought.
(c) No Violations of Agreements by HPT. Neither HPT's
execution, delivery or performance of this Agreement or the other
documents described in this Agreement to which it is a party, nor HPT's
compliance with the terms and provisions hereof or thereof, will result
in any breach of the terms, conditions or provisions of, or conflict
with or constitute a default under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of HPT pursuant
to the terms of, any indenture, mortgage, deed of trust, note, evidence
of indebtedness or any other agreement or instrument to which it may be
a party or by which it or any of its properties may be bound, or
violate any provisions of laws, or any applicable order, writ,
injunction, judgment or decree or any court, or any applicable order or
other public regulation of any governmental commission, bureau or
administrative agency.
(d) Status and Authority of HPTMI. HPTMI is a real estate
investment trust duly organized, validly existing and in good standing
under the laws of the State of Maryland, having all requisite power and
authority to carry on its business as such business is presently being
conducted and to enter into this Agreement and the other documents
described in this Agreement to which it is a party and to consummate
the transactions contemplated hereby and thereby.
(e) Action of HPTMI. HPTMI has taken all necessary action
under its charter documents to authorize the execution, delivery and
performance of this Agreement and the other documents described in this
Agreement to which it is a party, this Agreement, and such other
documents constitute, or will upon execution constitute, the valid and
binding obligations and agreements of HPTMI, enforceable in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws of general
applicability affecting the rights and remedies of creditors and
moratorium laws from time to time in effect, and except to the extent
that the availability of equitable relief may be subject to the
discretion of the court before which any proceeding therefor might be
brought.
(f) No Violations of Agreements by HPTMI. Neither HPTMI's
execution, delivery or performance of this Agreement or the other
documents described in this Agreement to which it is a party, nor
HPTMI's compliance with the terms and provisions hereof or thereof,
will result in any breach of the terms, conditions or provisions of, or
conflict with or constitute a default under, or result in the creation
of any lien, charge or encumbrance upon any property or assets of HPTMI
pursuant to the terms of, any indenture, mortgage, deed of trust, note,
evidence of indebtedness or any other agreement or instrument to which
it may be a party or by which it or any of its properties may be
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bound, or violate any provisions of laws, or any applicable order,
writ, injunction, judgment or decree or any court, or any applicable
order or other public regulation of any governmental commission, bureau
or administrative agency.
(g) Status and Authority of HPTMI Hawaii. HPTMI Hawaii is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware. HPTMI Hawaii has all requisite power
and authority under the laws of its state of formation and its
respective organizational documents to enter into and perform its
obligations under this Agreement and the other documents described in
this Agreement to which it is a party and to consummate the
transactions contemplated hereby and thereby.
(h) Action of HPTMI Hawaii. HPTMI Hawaii has taken all
necessary action under its charter documents to authorize the
execution, delivery and performance of this Agreement and the other
documents described in this Agreement to which it is a party, and this
Agreement and such other documents constitute, or will upon execution
constitute, the valid and binding obligation and agreement of HPTMI
Hawaii, enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws of general applicability affecting the
rights and remedies of creditors and moratorium laws from time to time
in effect, and except to the extent that the availability of equitable
relief may be subject to the discretion of the court before which any
proceeding therefor might be brought.
(i) No Violations of Agreements by HPTMI Hawaii. Neither HPTMI
Hawaii's execution, delivery or performance of this Agreement or the
other documents described in this Agreement to which it is a party, nor
HPTMI Hawaii's compliance with the terms and provisions hereof or
thereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or
result in the creation of any lien, charge or encumbrance upon any
property or assets of HPTMI Hawaii pursuant to the terms of, any
indenture, mortgage, deed of trust, note, evidence of indebtedness or
any other agreement or instrument to which HPTMI Hawaii may be a party
or by which HPTMI Hawaii or any of its properties may be bound, or
violate any provisions of laws, or any applicable order, writ,
injunction, judgment or decree or any court, or any applicable order or
other public regulation of any governmental commission, bureau or
administrative agency.
(j) Status and Authority of the New Tenant. The New Tenant is
a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The New Tenant has all
requisite power and authority under the laws of its state of formation
and its respective organizational documents to enter into and perform
its obligations under this Agreement and the other documents described
in this Agreement to which it is a party and to consummate the
transactions contemplated hereby and thereby.
(k) Action of the New Tenant. The New Tenant has taken all
necessary action under its charter documents to authorize the
execution, delivery and performance of this Agreement and the other
documents described in this Agreement to which it is a party,
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and this Agreement and such other documents constitute, or will upon
execution constitute, the valid and binding obligation and agreement of
the New Tenant, enforceable in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws of general applicability affecting the
rights and remedies of creditors and moratorium laws from time to time
in effect, and except to the extent that the availability of equitable
relief may be subject to the discretion of the court before which any
proceeding therefor might be brought.
(l) No Violations of Agreements by the New Tenant. Neither the
New Tenant's execution, delivery or performance of this Agreement or
the other documents described in this Agreement to which it is a party,
nor the New Tenant's compliance with the terms and provisions hereof or
thereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or
result in the creation of any lien, charge or encumbrance upon any
property or assets of the New Tenant pursuant to the terms of, any
indenture, mortgage, deed of trust, note, evidence of indebtedness or
any other agreement or instrument to which the New Tenant may be a
party or by which the New Tenant or any of its properties may be bound,
or violate any provisions of laws, or any applicable order, writ,
injunction, judgment or decree or any court, or any applicable order or
other public regulation of any governmental commission, bureau or
administrative agency.
The HPT Parties' liability with respect to the representations and warranties
set forth in this Agreement shall survive the Closing Date.
10. Representations of the Marriott Parties. The Marriott Parties
hereby represent and warrant that, as of the First Closing Date (which is the
date hereof) and each subsequent Closing Date hereunder:
(a) Status and Authority of MI. MI is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. MI has all requisite power and authority under the
laws of the State of Delaware and its organizational documents to enter
into and perform its obligations under this Agreement and the other
documents described in this Agreement to which it is a party and to
consummate the transactions contemplated hereby and thereby. MI is duly
qualified to transact business in each jurisdiction in which the nature
of the business conducted or to be conducted by it requires such
qualification.
(b) Action of MI. MI has taken all necessary action under its
charter documents to authorize the execution, delivery and performance
of this Agreement and the other documents described in this Agreement
to which it is a party, and this Agreement and such other documents
constitute, or will upon execution constitute, the valid and binding
obligations and agreements of MI, enforceable in accordance with their
respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws of general
applicability affecting the rights and remedies of creditors and
moratorium laws from time to time in effect and except to the extent
that the availability of equitable relief may be subject to the
discretion of the court before which any proceeding therefor might be
brought.
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(c) No Violations of Agreements. Neither MI's execution,
delivery or performance of this Agreement or the other documents
described in this Agreement to which it is a party, nor MI's compliance
with the terms and provisions hereof or thereof, will result in any
breach of the terms, conditions or provisions of, or conflict with or
constitute a default under, or result in the creation of any lien,
charge or encumbrance upon any property or assets of MI pursuant to the
terms of, any indenture, mortgage, deed of trust, note, evidence of
indebtedness or any other agreement or instrument to which MI may be a
party or by which MI or any of its properties may be bound, or violate
any provisions of laws, or any applicable order, writ, injunction,
judgment or decree or any court, or any applicable order or other
public regulation of any governmental commission, bureau or
administrative agency.
(d) Status and Authority of the Initial Tenants. Each Initial
Tenant is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Each Initial Tenant
has all requisite power and authority under the laws of the State of
Delaware and its organizational documents to enter into and perform its
obligations under this Agreement and the other documents described in
this Agreement to which it is a party and to consummate the
transactions contemplated hereby and thereby. Each Initial Tenant is
duly qualified to transact business in each jurisdiction in which the
nature of the business conducted or to be conducted by it requires such
qualification.
(e) Action of the Initial Tenants. Each Initial Tenant has
taken all necessary action under its charter documents to authorize the
execution, delivery and performance of this Agreement and the other
documents described in this Agreement to which it is a party, and this
Agreement and such other documents constitute, or will upon execution
constitute, the valid and binding obligations and agreements of each
Initial Tenant, enforceable in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws of general applicability affecting the
rights and remedies of creditors and moratorium laws from time to time
in effect and except to the extent that the availability of equitable
relief may be subject to the discretion of the court before which any
proceeding therefor might be brought.
(f) No Violations of Agreements by the Initial Tenants.
Neither Initial Tenant's execution, delivery or performance of this
Agreement or the other documents described in this Agreement to which
it is a party, nor such Initial Tenant's compliance with the terms and
provisions hereof or thereof, will result in any breach of the terms,
conditions or provisions of, or conflict with or constitute a default
under, or result in the creation of any lien, charge or encumbrance
upon any property or assets of such Initial Tenant pursuant to the
terms of, any indenture, mortgage, deed of trust, note, evidence of
indebtedness or any other agreement or instrument to which such Initial
Tenant may be a party or by which such Initial Tenant or any of its
properties may be bound, or violate any provisions of laws, or any
applicable order, writ, injunction, judgment or decree or any court, or
any applicable order or other public regulation of any governmental
commission, bureau or administrative agency.
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(g) Status and Authority of the Managers. Each Manager of a
Property is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Each Manager has all
requisite power and authority under the laws of the State of Delaware
and its organizational documents to enter into and perform its
obligations under this Agreement and the documents described in this
Agreement to which it is a party and to consummate the transactions
contemplated hereby and thereby. Each Manager is duly qualified to
transact business in each jurisdiction in which the nature of the
business conducted or to be conducted by it requires such
qualification.
(h) Action of the Managers. Each Manager has taken all
necessary action under its charter documents to authorize the
execution, delivery and performance of this Agreement and the other
documents described in this Agreement to which it is a party, and such
documents constitute, or will upon execution constitute, the valid and
binding obligation and agreement of such Manager, enforceable in
accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws of
general applicability affecting the rights and remedies of creditors
and moratorium laws from time to time in effect and except to the
extent that the availability of equitable relief may be subject to the
discretion of the court before which any proceeding therefor might be
brought.
(i) No Violations of Agreements by Any Manager. Neither the
execution, delivery or performance by any Manager of this Agreement or
any of the documents described in this Agreement to which it is a
party, nor the compliance by any Manager with the terms and provisions
hereof or thereof, will result in any breach of the terms, conditions
or provisions of, or conflict with or constitute a default under, or
result in the creation of any lien, charge or encumbrance upon any
property or assets of such Manager pursuant to the terms of any
indenture, mortgage, deed of trust, note, evidence of indebtedness or
any other agreement or instrument to which such Manager may be a party
or by which such Manager or any of its properties may be bound, or
violate any provisions of laws, or any applicable order, writ,
injunction, judgment or decree of any court, or any applicable order or
other public regulation of any governmental commission, bureau or
administrative agency.
(j) Representations for Additional Properties. All of the
representations and warranties made by each of the sellers in the
Purchase Agreements are true and correct in all respects and such
representations and warranties are hereby restated and made by the
Marriott Parties directly to and for the benefit of each of the HPT
Parties as if more fully set forth herein.
(k) Representations for Initial Properties.
(i) Disclosure. To the Marriott Parties' Knowledge
Group's actual knowledge, there is no fact or condition which
materially and adversely affects the physical condition of any
of the Initial Properties which has not been previously
disclosed to HPTMI.
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(ii) Condition of Initial Properties. Each of the
Initial Properties is in good working order and repair and in
substantial compliance with the Systems Standards and the
requirements of the applicable Franchise Agreement and
Management Agreement to be entered into by Tenant with respect
to such Initial Property.
(iii) Employees. The Marriott Parties acknowledge
that the Marriott Parties shall be responsible for payment of
all wages and salaries payable to, and all vacation pay,
pension and welfare benefits and other fringe benefits accrued
with respect to all individuals employed at such Initial
Property relating to the period prior to the Closing Date with
respect to such Initial Property and the Manager with respect
to such Initial Property shall be responsible for payment of
all such wages, salaries and benefits relating to the period
commencing on and from the Closing Date with respect to such
Initial Property. At no time hereunder, upon and after the
Closing Date on which the Initial Lease with respect to such
Initial Property is assigned to New Tenant, shall any of the
employees at such Initial Property (including any employees of
any manager thereof), be or be deemed to be the employees of
the HPT Parties, or be deemed to be transferred to the HPT
Parties. If required, each applicable Marriott Party will
comply with the notice and other requirements under the Worker
Adjustment Retraining and Notification Act ("WARN Act"), the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") or
any similar state or local legislation with respect to such
employee matters, and such obligation shall survive each such
Closing, notwithstanding anything to the contrary in the WARN
Act. Because the HPT Parties at no time will be or be deemed
to be the employer of the employees at any Initial Property,
it is expressly understood and agreed that the HPT Parties are
not and shall not be responsible or liable, directly or
indirectly, for the payment of any benefits, severance
liability, compensation, pay or other obligations, of whatever
nature, due or alleged to be due to any employee at the
Initial Property including employees of any manager thereof,
or of such Marriott Party attributable to any time period up
to, upon and after the Closing Date on which the Initial Lease
with respect to such Initial Property is assigned to New
Tenant. Similarly, there shall be no union agreements, pension
plans, health plans, benefit plans, deferred compensation
plans, bonus plans or vacation plans or similar agreements for
or concerning such employees which shall be binding upon the
HPT Parties.
(iv) FF&E, FAS and Inventories. Each Initial Tenant
has good and marketable title to the FF&E, FAS and Inventories
located on or used in connection with each of the Initial
Properties, and to the Marriott Parties' Knowledge Group's
knowledge, such FF&E, FAS and Inventories have not been used
prior to their use at such Initial Property.
(v) System Standards. The FF&E, FAS, Inventories and
Working Capital located at or otherwise used in connection
with each Initial Property (i) comply in all material respects
with the System Standards and with the requirements of the
applicable Franchise Agreement and the applicable
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Management Agreement for such Initial Property and (ii) and
otherwise, in the Marriott Parties' best reasonable judgment,
adequate, appropriate and at levels that are at least equal to
those found at other similarly situated hotels comparable to
such Initial Property.
(l) Title to Initial Leases. Neither of the Initial Tenants
has assigned all or any of portion of its right, title and interest in
and to its Initial Leases to any other entity except pursuant to the
terms hereof. Neither Initial Tenant has subleased or otherwise
transferred or encumbered any portion of its Initial Properties to any
other entity except pursuant to the terms hereof. Neither Initial
Tenant has taken, nor has such Initial Tenant failed to take, any
actions that could result in a lien, claim or encumbrance being placed
on or filed against its Initial Leases or Initial Properties or against
its right, title and interest to the Initial Leases or the Initial
Properties, except for any liens, claims and encumbrances that have
been previously approved by HPTMI (or its predecessor in interest)
under, and in accordance with, the Initial Leases.
(m) No Defaults under the Initial Leases. There exists no
default nor state of facts which, with the giving of notice and/or the
passage of time, would constitute a default under any of the Initial
Leases on the part of the Initial Tenant which is the tenant
thereunder. To the knowledge of the Marriott Parties' Knowledge Group,
there exists no default nor state of facts which, with the giving of
notice and/or the passage of time, would constitute a default under any
of the Initial Leases on the part of HPTMI.
(n) Ordinary Course. As of the Closing Date for each Property,
Manager and the Initial Tenants shall have operated, managed and
otherwise dealt with each Property then closing in its usual and
customary manner in the ordinary course and in a manner which is
otherwise substantially consistent with the terms of the Franchise
Agreement and the Management Agreement applicable to such Property.
(o) Consents Required Under Management Agreements. Between the
Effective Date and the Closing Date for each Initial Property (other
than those Initial Properties which shall close on the First Closing
Date), neither MI nor the applicable Manager shall have taken or
approved any action affecting such Initial Property which would have
required the consent of the New Tenant under the applicable Management
Agreement had such Management Agreement been in effect with respect to
such Initial Property, without the consent of the New Tenant (and the
standard for the New Tenant's granting of such consent shall be the
same standard as would have been applicable under such Management
Agreement).
The Marriott Parties' liability with respect to the representations and
warranties set forth in this Agreement shall survive the Closing Date.
11. Additional Obligations of HPT Parties.
(a) Deliveries for the First Closing Date. Subject to the
satisfaction of the conditions set forth in Section 13, on or before
the First Closing Date, the HPT Parties
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shall cause each of the following documents to be duly executed and
delivered by the relevant HPT Party which is a party thereto:
(i) a Termination Agreement for each First Closing
Initial Property, duly executed by HPTMI;
(ii) the Amendment to Initial Leases, duly executed
by HPTMI and the New Tenant;
(iii) an Assignment Agreement with respect to all of
the First Closing Initial Leases, duly executed by HPTMI and
the New Tenant;
(iv) the Additional Leases, duly executed by HPTMI
and the New Tenant;
(v) an Amendment to Closing Leases with respect to
the First Closing Leases, duly executed by HPTMI, HPTMI Hawaii
and the New Tenant;
(vi) a Memorandum of Lease with respect to each First
Closing Property, duly executed by HPTMI and the New Tenant
and in recordable form for the applicable jurisdiction;
(vii) the Agreement to Lease (Kauai), duly executed
by HPTMI Hawaii;
(viii) the Holdback Agreement, duly executed by HPTMI
Hawaii and the New Tenant;
(ix) the Pooling Agreement, duly executed by the New
Tenant;
(x) a Franchise Agreement with respect to each First
Closing Property which is closing on the First Closing Date
(other than the Kauai Property), duly executed by the New
Tenant;
(xi) a Management Agreement with respect to each
Marriott brand applicable to one or more of the First Closing
Properties, duly executed by the New Tenant;
(xii) a Memorandum of Management Agreement with
respect to each of the First Closing Properties, duly executed
by the New Tenant and in recordable form for the applicable
jurisdiction;
(xiii) the Kauai Owner Agreement, duly executed by
HPTMI Hawaii and the New Tenant;
(xiv) the Owner Agreement, duly executed by HPTMI and
the New Tenant;
(xv) the HPT Guaranty, duly executed by HPT;
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(xvi) a certificate of a duly authorized officer of
the HPT Parties confirming the continued truth and accuracy of
the representations and warranties of the HPT Parties in this
Agreement; and
(xvii) a Secretary's Certificate containing
applicable resolutions evidencing the authority of the HPT
Parties (as applicable) to execute and deliver the foregoing
documents.
(b) Deliveries for Subsequent Closing Dates. Subject to the
satisfaction of the conditions set forth in Section 13, on or before
each subsequent Closing Date, the HPT Parties shall cause each of the
following documents to be executed and delivered by the applicable HPT
Party which is a party thereto:
(i) a Termination Agreement with respect to each
Initial Property under each Initial Lease which is being
assigned on such subsequent Closing Date, duly executed by
HPTMI;
(ii) an Assignment Agreement with respect to all of
the Initial Properties under all of the Initial Leases which
are being assigned on such subsequent Closing Date, duly
executed by HPTMI and the New Tenant;
(iii) a Memorandum of Lease with respect to each
Initial Property under each Initial Lease which is being
assigned on such subsequent Closing Date, duly executed by
HPTMI and the New Tenant and in recordable form for the
applicable jurisdiction;
(iv) a Franchise Agreement with respect to each
Initial Property under each Initial Lease which is being
assigned on such subsequent Closing Date, duly executed by the
New Tenant;
(v) a Management Agreement with respect to each
Marriott brand applicable to the Initial Properties under the
Initial Leases which are being assigned on such subsequent
Closing Date (provided that a Management Agreement has not
already been executed as aforesaid with respect to such
Marriott brand), duly executed by the New Tenant;
(vi) a Memorandum of Management Agreement with
respect to each Initial Property under each Initial Lease
being assigned on such subsequent Closing Date, duly executed
by the New Tenant and in recordable form for the applicable
jurisdiction;
(vii) a separate confirmation by the applicable HPT
Parties of each of the following agreements, each such
confirmation to be in form and substance reasonably
satisfactory to the parties thereto, modifying the applicable
agreement to include the Initial Properties under the Initial
Leases which are being assigned on such subsequent Closing
Date and confirming that (x) such agreement has not been
further modified, or if modified identifying all amendments
thereto, (y) such
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agreement is in full force and effect, and (z) to such HPT
Parties' respective knowledge, no default has occurred
thereunder:
1) the Holdback Agreement, duly executed by
HPTMI and the New Tenant;
2) the Pooling Agreement, duly executed by the
New Tenant;
3) the applicable Management Agreement, duly
executed by the New Tenant;
4) the Owner Agreement, duly executed by HPTMI
and the New Tenant; and
5) the HPT Guaranty, duly executed by HPT;
(viii) a certificate of a duly authorized officer of
each of the HPT Parties confirming the continued truth and
accuracy of the representations and warranties of the HPT
Parties in this Agreement; and
(ix) a Secretary's Certificate containing applicable
resolutions evidencing the authority of each of the HPT
Parties (as applicable) to execute and deliver the foregoing
documents to which it is a party.
(c) Additional Deliveries for Last Closing Date. Subject to
the satisfaction of the conditions set forth in Section 13, on or
before the last Closing Date, the HPT Parties shall cause each of the
following documents to be executed and/or delivered by the applicable
HPT Party which is a party thereto (in addition to the other documents
which are required to be executed and/or delivered pursuant to Section
11(b) above):
(i) a release of the Indemnity Pledge Agreement and
Security Agreement, dated as of April 3, 1997, made by MI to
HPTMI with respect to the stock of CR14, in form and substance
reasonably satisfactory to MI and HPTMI, duly executed by
HPTMI;
(ii) a return of that Stock Power made by MI with
respect to the stock of CR14;
(iii) a return of that certain stock certificate with
respect to the outstanding stock in CR14;
(iv) a release of the Indemnity Pledge Agreement and
Security Agreement, dated as of December 29, 1998, made by MI
to HPTMI with respect to the stock of CRTM17, in form and
substance reasonably satisfactory to MI and HPTMI, duly
executed by HPTMI;
(v) a return of that Stock Power made by MI with
respect to the stock of CRTM17; and
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(vi) a return of that certain stock certificate with
respect to the outstanding stock in CRTM17.
12. Additional Obligations of MI and Manager.
(a) Deliveries for the First Closing Date. Subject to the
satisfaction of the conditions set forth in Section 13, on or before
the First Closing Date, the Marriott Parties shall cause each of the
following documents to be duly executed and delivered by the applicable
Marriott Party which is a party thereto:
(i) a Termination Agreement with respect to each
First Closing Initial Property, duly executed by the Initial
Tenant for such Initial Property;
(ii) the Amendment to Initial Leases, duly executed
by the Initial Tenants;
(iii) an Assignment Agreement with respect to all of
the First Closing Initial Properties, duly executed by the
Initial Tenants for such Initial Properties;
(iv) an Amendment to Closing Leases with respect to
the First Closing Leases, duly acknowledged by MI, the Initial
Tenants and the applicable Managers;
(v) a Memorandum of Lease with respect to each First
Closing Initial Property, duly executed by the applicable
Initial Tenant and in recordable form for the applicable
jurisdiction;
(vi) the Agreement to Lease (Kauai), duly executed by
Marriott;
(vii) the Holdback Agreement, duly executed by MI and
the Initial Tenants;
(viii) the MI Guaranty, duly executed by MI;
(ix) the Limited Rent Guaranty, duly executed by MI;
(x) the Pooling Agreement, duly executed by MI, ▇▇▇▇,
▇▇▇▇▇▇ and each Manager;
(xi) a Franchise Agreement with respect to each First
Closing Property (other than the Kauai Property), duly
executed by MI;
(xii) a Management Agreement with respect to each
Marriott brand applicable to the First Closing Properties,
duly executed by the applicable Manager with respect to such
Marriott Brand;
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(xiii) a Memorandum of Management Agreement with
respect to each First Closing Property, duly executed by the
Manager for such Property and in recordable form for the
applicable jurisdiction;
(xiv) the Owner Agreement, duly executed by MI and
the Managers;
(xv) a ▇▇▇▇ of Sale with respect to the FF&E, Fixed
Asset Supplies, Inventories and Working Capital located on or
used in connection with each First Closing Initial Property
under each First Closing Initial Lease, duly executed by the
Manager for such Initial Property, in form and substance
reasonably satisfactory to such Manager and HPTMI;
(xvi) a written opinion from counsel to the Marriott
Parties (which may be their in-house counsel), in form and
substance reasonably satisfactory to the HPT Parties,
regarding the organization and authority of the Marriott
Parties and such other persons as the HPT Parties may
reasonably require, the enforceability of this Agreement and
such other matters with respect to the transactions
contemplated by this Agreement or as the HPT Parties may
reasonably require.
(xvii) certificate of a duly authorized officer of
the Marriott Parties confirming the continued truth and
accuracy of the representations and warranties of each of the
Marriott Parties in this Agreement; and
(xviii) certified copies of applicable resolutions
and certificates of incumbency with respect to each of the
Marriott Parties.
(b) Deliveries for Subsequent Closing Dates. Subject to the
satisfaction of the conditions set forth in Section 13, on or before
each subsequent Closing Date, the Marriott Parties shall cause each of
the following documents to be executed and delivered by the applicable
Marriott Party which is a party thereto:
(i) a Termination Agreement with respect to each
Initial Property under each Initial Lease which is being
assigned on such subsequent Closing Date, duly executed by the
Initial Tenant for such Initial Property;
(ii) an Assignment Agreement with respect to all of
the Initial Properties under all of the Initial Leases which
are being assigned on such subsequent Closing Date, duly
executed by the applicable Initial Tenants;
(iii) a Memorandum of Lease with respect to each
Initial Property under each Initial Lease which is being
assigned on such subsequent Closing Date, duly executed by the
applicable Initial Tenant in recordable form for the
applicable jurisdiction;
(iv) a Franchise Agreement with respect to each
Initial Property under each Initial Lease which is being
assigned on such subsequent Closing Date, duly executed by MI;
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(v) a Management Agreement with respect to each
Marriott brand applicable to the Initial Properties under the
Initial Leases which are being assigned on such subsequent
Closing Date, duly executed by the applicable Manager with
respect to such Marriott brand, provided that a Management
Agreement has not already been executed as aforesaid with
respect to such Marriott brand;
(vi) a Memorandum of each Management Agreement with
respect to each Initial Property under each Initial Lease
which is being closed on such subsequent Closing Date, duly
executed by MI and in recordable form for the applicable
jurisdiction;
(vii) a ▇▇▇▇ of Sale with respect to the FF&E, Fixed
Asset Supplies, Inventories and Working Capital located or
used in connection with each Initial Property under each
Initial Lease being assigned on such subsequent Closing Date,
duly executed by the Manager for such Initial Property, in
form and substance reasonably satisfactory to such Manager and
HPTMI;
(viii) a separate confirmation by the applicable
Marriott Parties of each of the following agreements, each
such confirmation to be in form and substance reasonably
satisfactory to the parties hereto, modifying the applicable
agreement to include the Initial Properties under the Initial
Leases which are being assigned on such subsequent Closing
Date and confirming that (x) such agreement has not been
further modified, or if modified identifying all amendments
thereto, (y) such agreement is in full force and effect, and
(z) to such MI Party's respective knowledge, no default has
occurred by such MI Party (as applicable) thereunder:
1) the Holdback Agreement, duly executed by MI
and the Initial Tenants;
2) the Pooling Agreement, duly executed by MI,
the Initial Tenants and each Manager;
3) the applicable Management Agreement, duly
executed by the applicable Manager with
respect to each applicable Marriott brand;
4) the MI Guaranty, duly executed by MI;
5) the Limited Rent Guaranty, duly executed by
MI; and
6) the Owner Agreement, duly executed by MI and
the Managers.
(ix) a written opinion from ▇▇▇▇▇▇▇▇ & Worcester LLP,
counsel to the HPT Parties, in form and substance reasonably
satisfactory to the Marriott Parties, regarding the
organization and authority of the HPT Parties and any
affiliates of the HPT Parties which are then a party to the
transactions contemplated by this
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Agreement, the enforceability of this Agreement and such other
matters with respect to the transactions contemplated by this
Agreement or as the Marriott Parties may reasonably require.
(x) a certificate of a duly authorized officer of
each of the Marriott Parties confirming the continued truth
and accuracy of the representations and warranties of the
Marriott Parties in this Agreement; and
(xi) certified copies of applicable resolutions and
certificates of incumbency with respect to each of the
Marriott Parties.
(c) Additional Deliveries for Last Closing Date. Subject to
the satisfaction of the conditions set forth in Section 13, on or
before the last Closing Date, the HPT Parties shall cause each of the
following documents to be executed and/or delivered by the applicable
HPT Party which is a party thereto (in addition to the other documents
which are required to be executed and/or delivered pursuant to Section
12(b) above):
(i) Release of Guaranty Agreement, dated as of April
3, 1997, made by HPT in favor of MI and CR14, in form and
substance reasonably satisfactory to HPT, MI and CR14, duly
executed by MI and CR14; and
(ii) Release of Guaranty Agreement, dated as of
December 29, 1998, made by HPT in favor of MI and CRTM17, in
form and substance reasonably satisfactory to HPT, MI and
CRTM17, duly executed by MI and CRTM17.
13. Conditions Precedent.
(a) With respect to the Closing which shall occur on the First
Closing Date, it shall be a condition precedent to each party's
performance hereunder that the consummation of the transactions
contemplated by the Purchase Agreements shall have occurred.
(b) With respect to each Closing which shall occur after the
First Closing Date, it shall be a condition precedent to the HPT
Parties' performance hereunder with respect to such subsequent Closing
that:
(i) there shall exist no default on the part of any
of the Marriott Parties (after notice and the expiration of
any cure periods with respect thereto) under this Agreement,
the Initial Leases not previously assigned to Tenant or any
other document executed in connection herewith or therewith or
contemplated hereby or thereby; and
(ii) all representations and warranties of the
Marriott Parties contained herein shall be true and correct as
of such Closing Date.
(c) With respect to each Closing which shall occur after the
First Closing Date, it shall be a condition precedent to the Marriott
Parties' performance hereunder with respect to such subsequent Closing
that:
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(i) there shall exist no default on the part of any
of the HPT Parties (after notice and the expiration of any
cure periods with respect thereto) under this Agreement, the
Management Agreements, the Franchise Agreements or any other
document executed in connection herewith or therewith or
contemplated hereby or thereby; and
(ii) all representations and warranties of the HPT
Parties contained herein shall be true and correct as of such
Closing Date.
14. Guaranties.
(a) HPT hereby unconditionally guarantees the obligations of
each of the HPT Parties to execute and deliver each and every
instrument, document or agreement contemplated hereby, to which such
HPT Party is to be a party, upon the satisfaction of all conditions
precedent thereto as described in this Agreement, but subject to
Section 17(a) below.
(b) MI hereby unconditionally guarantees the obligations of
each of the Marriott Parties to execute and deliver each and every
instrument, document or agreement contemplated hereby, to which such
Marriott Party is to be a party, upon the satisfaction of all
conditions precedent thereto as described in this Agreement, but
subject to Section 17(b) below.
15. Notices.
(a) Any and all notices, demands, consents, approvals, offers,
elections and other communications required or permitted under this
Agreement shall be deemed adequately given if in writing and the same
shall be delivered either in hand, by telecopier with written
acknowledgment of receipt, or by mail or Federal Express or similar
expedited commercial carrier, addressed to the recipient of the notice,
postpaid and registered or certified with return receipt requested (if
by mail), or with all freight charges prepaid (if by Federal Express or
similar carrier).
(b) All notices required or permitted to be sent hereunder
shall be deemed to have been given for all purposes of this Agreement
upon the date of acknowledged receipt, in the case of a notice by
telecopier, and, in all other cases, upon the date of receipt or
refusal, except that whenever under this Agreement a notice is either
received on a day which is not a Business Day or is required to be
delivered on or before a specific day which is not a Business Day, the
day of receipt or required delivery shall be extended automatically to
the next Business Day.
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(c) All such notices shall be addressed,
If to any HPT Party to:
c/o Hospitality Properties Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
[Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇]
with a copy to:
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., Esq.
Sander ▇. ▇▇▇, Esq.
[Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇]
If to any Marriott Party to:
Marriott International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇. 52/924.11
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇]
with a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP
1800 Mercantile Bank & Trust Building
Two ▇▇▇▇▇▇▇ Plaza
Baltimore, Maryland 21201-2978
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
[Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇]
(d) By notice given as herein provided, the parties hereto and
their respective successors and assigns shall have the right from time
to time and at any time during the term of this Agreement to change
their respective addresses effective upon receipt by the other parties
of such notice and each shall have the right to specify as its address
any other address within the United States of America.
16. Assignment. None of the HPT Parties shall assign or transfer,
directly or indirectly, its rights under this Agreement without the prior
written consent of the Marriott Parties, which consent may be given or withheld
in their sole discretion, except that HPTMI or the New Tenant shall have the
right to assign this Agreement to any permitted transferee of any Property under
any Lease. None of the Marriott Parties shall assign or transfer, directly or
indirectly, its rights under this Agreement without the prior written consent of
the other parties
-25-
hereto. No permitted assignment of this Agreement shall release any party from
liability hereunder.
17. Default.
(a) Default by HPT Parties. If any HPT Party shall have made
any representation or warranty herein which shall be untrue in any
material respect when made or at the time of any Closing, or if any HPT
Party shall fail to perform any of the covenants and agreements
contained herein to be performed by it and such failure shall continue
for a period of ten (10) days after notice thereof from any Marriott
Party (or such additional period, not to extend beyond March 31, 2002,
as may be reasonably required to cure the same), the Marriott Parties
may terminate this Agreement and/or pursue any and all remedies
available to them at law or in equity, including, but not limited to, a
suit for specific performance or other equitable relief; provided,
however, that in no event shall any HPT Party be liable for
consequential damages. It is understood and agreed that, for purposes
of this Section, if a default results from a false representation or
warranty, such default shall be deemed cured if the events, conditions,
acts or omissions giving rise to the falsehood are cured within the
applicable cure period event though, as a technical matter, such
representation or warranty was false as of the date actually made.
(b) Default by Marriott Parties. If any Marriott Party shall
have made any representation or warranty herein which shall be untrue
in any material respect when made or at the time of each Closing, or if
any Marriott Party shall fail to perform any of the covenants and
agreements contained herein to be performed by such Marriott Party and
such failure continues for a period of ten (10) days after notice
thereof from any HPT Party (or such additional period, not to extend
beyond March 31, 2002, as may be reasonably required to cure the same),
or if there shall be a default by the tenant under any Initial Lease
beyond any applicable notice and cure period, the HPT Parties may
terminate this Agreement and/or pursue any and all remedies available
to them at law or in equity, including, but not limited to, a suit for
specific performance or other equitable relief; provided, however, that
in no event shall the Marriott Parties be liable for consequential
damages. It is understood and agreed that, for purposes of this
Section, if a default results from a false representation or warranty,
such default shall be deemed cured if the events, conditions, acts or
omissions giving rise to the falsehood are cured within the applicable
cure period even though, as a technical matter, such representation or
warranty was false as of the date actually made.
18. Apportionments.
(a) At the Closing for each Property, the following
adjustments and prorations shall be computed as of 12:01 a.m. (local
time at the Property) on the day after the Closing Date ("Apportionment
Time") for such Property. All items of revenue, cost and expense of
such Property with respect to the period prior to the Apportionment
Time shall be for the account of MI and the Manager of such Property.
All items of revenue, cost and expense of such Property with respect to
the period from and after the Apportionment Time shall be for the
account of the New Tenant. All adjustments and
-26-
prorations shall be on an accrual basis in accordance with generally
accepted accounting principles, and otherwise in accordance with the
requirements set forth in Exhibit I.
(b) At each Closing, a fair and reasonable estimated
accounting of all adjustments and prorations shall be performed and
agreed to by MI, the Manager for such Property, HPTMI and the New
Tenant. Subsequent final adjustments and payments (the "True-up") shall
be made in cash or other immediately available funds as soon as
practicable after the Closing Date for such Property, based upon an
accounting performed by the Manager for such Property and acceptable to
HPTMI and the New Tenant. In the event the parties have not agreed with
respect to the adjustments required to be made pursuant to this Section
18(b), upon application by any such party, a certified public
accountant reasonably acceptable to the parties hereto shall determine
any such adjustments which have not theretofore been agreed to by the
parties hereto. The charges for such accountant shall be borne equally
by the parties to such disputed adjustment. All adjustments to be made
as a result of the final results of the True-up shall be paid to the
party entitled to such adjustment within thirty (30) days after the
final determination thereof.
The provisions of this Section 18 shall survive each Closing.
19. Survival. All representations, warranties and covenants set forth
in this Agreement shall survive each Closing.
20. Brokerage Commissions. Each of the parties hereto represents to the
other parties that it dealt with no broker, finder or like agent in connection
with this Agreement or the transactions contemplated hereby, and that it
reasonably believes that there is no basis for any other person or entity to
claim a commission or other compensation for bringing about this Agreement or
the transactions contemplated hereby. The HPT Parties shall indemnify and hold
harmless the Marriott Parties, and their respective successors and assigns, from
and against any loss, liability or expense, including reasonable attorneys'
fees, arising out of any claim or claims for commissions or other compensation
for bringing about this Agreement or the transactions contemplated hereby made
by any broker, finder or like agent, if such claim or claims are based in whole
or in part on dealings with any of the HPT Parties. The Marriott Parties shall
indemnify and hold harmless the HPT Parties, and their respective successors and
assigns, from and against any loss, liability or expense, including reasonable
attorneys' fees, arising out of any claim or claims for commissions or other
compensation for bringing about this Agreement or the transactions contemplated
hereby made by any broker, finder or like agent, if such claim or claims are
based in whole or in part on dealings with any of the Marriott Parties. Nothing
contained in this Section 20 shall be deemed to create any rights in any third
party. The provisions of this Section 20 shall survive the Closings hereunder
and any termination of this Agreement.
21. Miscellaneous.
(a) Merger. CRTM17 hereby acknowledges that, in connection
with the transactions contemplated under this Agreement, HPT caused
HPTMI III Properties Trust to be merged with and into HPTMI.
-27-
(b) Amendment and Restatement of Leases. The Marriott Parties
acknowledge that they have been advised by the HPT Parties that the HPT
Parties intend to amend and restate the Additional Leases and the
Initial Leases that have been from time to time assigned to the New
Tenant pursuant to the terms hereof (and after giving effect to any
amendments contemplated hereby) as a single master lease. The Marriott
Parties shall not object to any such restatement provided that the
terms thereof are substantially identical to the terms of such
Additional Leases and Initial Leases as aforesaid.
(c) Confirmation of Indemnification Agreements. The Marriott
Parties hereby acknowledge and agree that the consummation of the
transactions contemplated by this Agreement shall not affect the rights
or the obligations of the HPT Parties or the Marriott Parties as set
forth in (i) that certain Indemnification Agreement, dated April 3,
1997, by Courtyard and Residence Inn for the benefit of HPTMI; (ii)
that certain Indemnification Agreement, dated December 19, 1997, by
Courtyard for the benefit of HPTMI; and (iii) that certain
Indemnification Agreement, dated March 26, 1999, by TownePlace and
CRTM17 for the benefit of HPTMI III Properties Trust.
(d) Expenses. Each party shall bear the cost and expense of
its legal counsel in connection with the consummation of this
transaction. All other costs and expenses associated with the
transaction contemplated hereby, including without limitation,
recording fees and taxes, transfer fees, local counsel fees and other
costs and expenses shall be shared by the Marriott Parties and the HPT
Parties.
(e) Publicity. The parties agree that no party shall, with
respect to this Agreement and the transactions contemplated hereby,
contact or conduct negotiations with public officials, make any public
pronouncements, issue press releases or otherwise furnish information
regarding this Agreement or the transactions contemplated hereby to any
third party without the consent of the other party, which consent shall
not be unreasonably withheld, delayed or conditioned, except as
required by law or unless such action is taken based on advice of
counsel given in good faith, and except as may be reasonably necessary,
on a confidential basis, to inform any rating agencies, potential
sources of financing, financial analyst, or to receive legal,
accounting and/or tax advice. No party shall trade in the securities of
HPT or of any affiliate of HPT until a public announcement of the
transactions contemplated by this Agreement has been made.
(f) Performance on Business Days. In the event the date on
which performance or payment of any obligation of a party required
hereunder is other than a Business Day, the time for payment or
performance shall be extended automatically to the first Business Day
following such date.
(g) Applicable Law. This Agreement shall be interpreted,
construed, applied and enforced in accordance with the laws of the
State of Maryland applicable to contracts between residents of Maryland
which are to be performed entirely within Maryland, regardless of (i)
where this Agreement is executed or delivered, (ii) where any payment
or other performance required by this Agreement is made or required to
be made, (iii) where any breach of any provision of this Agreement
occurs, or any cause of action
-28-
otherwise accrues, (iv) where any action or other proceeding is
instituted or pending, (v) the nationality, citizenship, domicile,
principal place of business, or jurisdiction of organization or
domestication of any party, (vi) whether the laws of the forum
jurisdiction otherwise would apply the laws of a jurisdiction other
than the State of Maryland, or (vii) any combination of the foregoing.
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 shall be brought and prosecuted in such
court or courts located in the State of Maryland as is provided by law;
and the parties consent to the jurisdiction of said court or courts
located in the State of Maryland and to service of process by
registered mail, return receipt requested, or by any other manner
provided by law.
(h) Modification of Agreement. No modification or waiver of
any provision of this Agreement, nor any consent to any departure by
any party therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties to this Agreement, and
such modification, waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or
demand on any party in any case shall entitle such party to any other
or further notice or demand in the same, similar or other
circumstances.
(i) Waiver of Rights. Neither any failure nor any delay on the
part of any party in exercising any right, power, or privilege under
this Agreement shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise or the
exercise of any right, power or privilege.
(j) Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the
remaining provisions contained therein or herein shall not in any way
be affected or impaired thereby and this Agreement shall thereupon be
reformed and construed and enforced to the maximum extent permitted by
applicable law.
(k) Entire Agreement. This Agreement, including all annexes
and exhibits hereto, constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and thereof
and shall supersede and take the place of any other instruments
purporting to be an agreement of the parties hereto relating to the
transactions contemplated hereby, including, without limitation, any
letter of intent or commitment letter.
(l) Counterparts; Headings. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original,
but which, when taken together, shall constitute but one instrument and
shall become effective as of the date hereof when copies hereof, which,
when taken together, bear the signatures of each of the parties hereto
shall have been signed. Headings in this Agreement are for purposes of
reference only and shall not limit or affect the meaning of the
provisions hereof.
-29-
(m) Binding Effect. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
(n) Performance under Purchase Agreement. Each of the HPT
Parties and the Marriott Parties agree to perform their respective
obligations under the terms of the Purchase Agreement.
(o) Time of the Essence. Time is of the essence with respect
to this Agreement.
(p) Agreement to Indemnify.
(i) Subject to any express provisions of this
Agreement to the contrary, from and after any Closing, with
respect to the applicable Property (a) the Marriott Parties
shall indemnify, defend and hold harmless the HPT Parties from
and against any and all obligations, claims, losses, damages,
liabilities, and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and disbursements)
arising out of (i) any assessment imposed upon any Property
for improvements commenced prior to the Closing Date for such
Property which are not otherwise reflected in the pro forma
budget prepared by the Marriott Parties and delivered to the
HPT Parties prior to the Closing for such Property, (ii)
events, acts, or omissions of the Marriott Parties that
occurred in connection with their ownership or operation of
the applicable Property prior to the applicable Closing Date
or obligations accruing prior to the applicable Closing Date
under any contract of the Marriott Parties (except to the
extent of any adjustment made in respect of such contract at
Closing under this Agreement), or (iii) any claim against any
of the HPT Parties for damage to property of others or injury
to or death of any person or any debts or obligations of or
against and arising out of any event occurring on or about or
in connection with the applicable Property or any portion
thereof, at any time or times prior to the applicable Closing
Date and (b) the HPT Parties shall indemnify, defend and hold
harmless the Marriott Parties from and against any and all
obligations, claims, losses, damages, liabilities, and
expenses (including, without limitation, reasonable attorneys'
and accountants' fees and disbursements) arising out of any
material breach of a representation or warranty made by any of
the HPT Parties under this Agreement. The indemnity provided
for in this Section 21(p) (other than the indemnity provided
with respect to a breach of any representation or warranty)
shall not extend to any consequential damages. Nothing set
forth in this Section 21(p) shall modify or affect the
liability of any party under any of the Leases or any
Management Agreement.
(ii) Whenever any party shall learn through the
filing of a claim or the commencement of a proceeding or
otherwise of the existence of any liability for which any
other party is or may be responsible under this Agreement, the
party learning of such liability shall notify each of the
other parties promptly and furnish copies of such documents
(and make originals thereof available) and such
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other information as such party may have that may be used or
useful in the defense of such claims and shall afford said
other party or parties full opportunity to defend the same in
the name of such party and shall generally cooperate with said
other party or parties in the defense of any such claim.
(iii) The provisions of this Section 21(p) shall
survive the Closings hereunder and the termination of this
Agreement.
(q) NONLIABILITY OF TRUSTEES. THE DECLARATIONS OF TRUST
ESTABLISHING EACH OF HPT AND HPTMI, COPIES OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (EACH A "DECLARATION"), ARE DULY FILED WITH THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND,
PROVIDE THAT THE NAME "HOSPITALITY PROPERTIES TRUST", AND "HPTMI
PROPERTIES TRUST" (AS APPLICABLE) REFER TO THE TRUSTEES UNDER SUCH
DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR
AGENT OF HPT OR HPTMI (AS APPLICABLE) SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, HPT OR HPTMI (AS APPLICABLE). ALL PERSONS DEALING WITH HPT OR
HPTMI (AS APPLICABLE), IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF HPT
OR HPTMI (AS APPLICABLE) FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE
OF ANY OBLIGATION.
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IN WITNESS WHEREOF, each of the HPT Parties and the Marriott Parties
have executed this Agreement under seal as of the date above first written.
HPT:
HOSPITALITY PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
HPTMI:
HPTMI PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
NEW TENANT:
HPT TRS MI-135, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
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MI:
MARRIOTT INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Signatory
CR14:
CR14 TENANT CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
CRTM17:
CRTM17 TENANT CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
COURTYARD:
COURTYARD MANAGEMENT CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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MARRIOTT KAUAI:
MARRIOTT KAUAI, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Signatory
RESIDENCE INN:
RESIDENCE INN BY MARRIOTT, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
TOWNEPLACE
TOWNEPLACE MANAGEMENT, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
FULL SERVICE MANAGER:
MARRIOTT HOTEL SERVICES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
-34-
Exhibits
A - Initial Leases
B - Initial Properties
C - Additional Properties
D - Amendment to Closing Leases
E - Assignment Agreement
F - Franchise Agreements
G - Management Agreement
H - Termination Agreement
I - Pro Rations Requirements
EXHIBIT A-1
CR14 Leases
1. Lease agreement dated April 3, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Fresno, California - Residence Inn).
2. Lease agreement dated April 3, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Reno, Nevada - Residence Inn).
3. Lease agreement dated April 3, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Dallas, Texas - Residence Inn).
4. Lease agreement dated April 3, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Fort Worth, Texas - Residence Inn).
5. Lease agreement dated April 3, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Fort Worth, Texas - Courtyard).
6. Lease agreement dated April 3, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Houston, Texas - Courtyard).
7. Lease agreement dated April 3, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (San Antonio, Texas - Residence Inn).
8. Lease agreement dated April 25, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Birmingham, Alabama - Residence Inn).
9. Lease agreement dated April 25, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Charlottesville, Virginia - Residence Inn).
10. Lease agreement dated May 23, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Atlanta, Georgia - Residence Inn).
11. Lease agreement dated October 10, 1997 between Courtyard Management
Corporation and CR14 Tenant Corporation (Allentown, Pennsylvania -
Courtyard). Assigned to HPTMI Properties Trust on October 10, 1997.
12. Lease agreement dated October 10, 1997 between Residence Inn by
Marriott, Inc. and CR14 Tenant Corporation (Allentown, Pennsylvania -
Residence Inn). Assigned to HPTMI Properties Trust on October 10, 1997.
13. Lease agreement dated October 10, 1997 between HPTMI Properties Trust
and CR14 Tenant Corporation (Fairfax, Virginia - Residence Inn).
14. Lease agreement dated December 19, 1997 between HPTMI Properties Trust
and CR14 Tenant Corporation (Birmingham, Alabama - Courtyard).
EXHIBIT A-2
CRTM17 Leases
Landlord succeeded to the interest of HPTMI III Properties Trust under the
leases pursuant to those certain Articles of Merger which were filed on June 14,
2001.
1. Lease agreement dated December 29, 1998 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Atlanta, Georgia - TownePlace,
Norcross).
2. Lease agreement dated December 29, 1998 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (St. Louis, Missouri - MH).
3. Lease agreement dated December 29, 1998 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Nashville, Tennessee - MH).
4. Lease agreement dated December 29, 1998 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Norfolk, Virginia - TownePlace).
5. Lease agreement dated January 22, 1999 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Atlanta, Georgia - TownePlace,
Northlake).
6. Lease agreement dated January 22, 1999 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Richmond, Virginia - TownePlace).
7. Lease agreement dated January 22, 1999 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Virginia Beach, Virginia -
TownePlace).
8. Lease agreement dated February 5, 1999 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Fairfax, Virginia - TownePlace).
9. Lease agreement dated March 26, 1999 between HPTMI III Properties Trust
and CRTM17 Tenant Corporation (Raleigh, North Carolina - Residence Inn,
Airport).
10. Lease agreement dated March 26, 1999 between HPTMI III Properties Trust
and CRTM17 Tenant Corporation (Falls Church, Virginia - TownePlace).
11. Lease agreement dated April 16, 1999 between HPTMI III Properties Trust
and CRTM17 Tenant Corporation (Charleston, South Carolina - Courtyard).
12. Lease agreement dated May 21, 1999 between HPTMI III Properties Trust
and CRTM17 Tenant Corporation (Chicago, Illinois - Residence Inn).
13. Lease agreement dated May 21, 1999 between HPTMI III Properties Trust
and CRTM17 Tenant Corporation (Raleigh, North Carolina - Residence Inn,
▇▇▇▇▇).
14. Lease agreement dated May 28, 1999 between HPTMI III Properties Trust
and CRTM17 Tenant Corporation (Chicago, Illinois - TownePlace).
15. Lease agreement dated October 15, 1999 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Detroit, Michigan - TownePlace).
16. Lease agreement dated November 19, 1999 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Chicago, Illinois - Courtyard).
17. Lease agreement dated December 17, 1999 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Detroit, Michigan - Courtyard).
EXHIBIT A-3
First Closing Initial Leases
1. Lease agreement dated April 3, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Fresno, California - Residence Inn).
2. Lease agreement dated April 3, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Fort Worth, Texas - Courtyard).
3. Lease agreement dated May 23, 1997 between HPTMI Properties Trust and
CR14 Tenant Corporation (Atlanta, Georgia - Residence Inn).
4. Lease agreement dated January 22, 1999 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Richmond, Virginia - TownePlace).
5. Lease agreement dated May 28, 1999 between HPTMI III Properties Trust
and CRTM17 Tenant Corporation (Chicago, Illinois - TownePlace).
6. Lease agreement dated October 15, 1999 between HPTMI III Properties
Trust and CRTM17 Tenant Corporation (Detroit, Michigan - TownePlace).
As each Lease has been amended by that certain Amendment to Initial Leases,
dated as of the date hereof, by and between HPTMI Properties Trust, CR14 Tenant
Corporation and CRTM17 Tenant Corporation.
EXHIBIT B-1
CR14 Properties
[see attached legal descriptions]
EXHIBIT B-2
CRTM17 Properties
[see attached legal descriptions]
EXHIBIT C-1
Additional Limited Service Properties
[see attached legal descriptions]
1. Emeryville, California (Courtyard)
2. Renton, Washington (SpringHill)
3. Renton, Washington (TownePlace)
EXHIBIT C-2
The Kauai Property
[see attached legal description]
Schedules containing legal descriptions for the following properties appear
here in the Agreement, but have been omitted:
1. Fresno, California - Residence Inn
2. Reno, Nevada - Residence Inn
3. Dallas, Texas - Residence Inn
4. Fort Worth, Texas - Residence Inn
5. Fort Worth, Texas - Courtyard
6. Houston, Texas - Courtyard
7. San Antonio, Texas - Residence Inn
8. Birmingham, Alabama - Residence Inn
9. Charlottesville, Virginia - Residence Inn
10. Atlanta, Georgia - Residence Inn
11. Allentown, Pennsylvania - Courtyard
12. Allentown, Pennsylvania - Residence Inn
13. Fairfax, Virginia - Residence Inn
14. Birmingham, Alabama - Courtyard
15. Atlanta, Georgia - TownePlace, Norcross
16. St. Louis, Missouri - MH
17. Nashville, Tennessee - MH
18. Norfolk, Virginia - TownePlace
19. Atlanta, Georgia - TownePlace, Northlake
20. Richmond, Virginia - ▇▇▇▇▇▇▇▇▇▇
▇▇. Virginia Beach, Virginia - ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇
▇▇. Raleigh, North Carolina - ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇
▇▇. Chicago, Illinois - Residence Inn
27. Raleigh, North Carolina - Residence Inn, ▇▇▇▇▇
28. Chicago, Illinois - ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇
▇▇. Chicago, Illinois - Courtyard
31. Detroit, Michigan - Courtyard
32. Emeryville, California - Courtyard
33. Renton, Washington - SpringHill
34. Renton, Washington - ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, Hawaii - Marriott Kauai Resort
EXHIBIT D
Amendment to Closing Leases
[see attached]
AMENDMENT TO CLOSING LEASES
THIS AMENDMENT TO CLOSING LEASES (this "Amendment") is made as of the
___ day of June, 2001 by and among HPTMI PROPERTIES TRUST, a Maryland real
estate investment trust ("HPTMI"), HPTMI HAWAII, INC., a Delaware corporation
("HPTMI Hawaii" and, together with HPTMI, collectively, the "Landlords") and HPT
TRS MI-135, INC., a Delaware corporation ("Tenant").
W I T N E S S E T H :
WHEREAS, pursuant to that certain Agreement to Assign, Release,
Franchise and Manage, dated as of the date hereof (as it may be amended from
time to time, the "Agreement to Assign"), among CR14 Tenant Corporation
("CR14"), CRTM17 Tenant Corporation ("CRTM17" and, together with CR14,
collectively, the "Assignors"), Tenant and the Landlords, among others, the
Assignors have agreed to assign to Tenant, and Tenant has agreed to assume from
the Assignors, all of the Assignors' right, title and interest in and to the
Lease Agreements described on Exhibit A attached hereto and made a part hereof
(the "Initial Leases");
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of the date hereof, among ▇▇▇▇, ▇▇▇▇▇▇, Tenant and HPTMI, the Assignors
have assigned to Tenant, and Tenant has assumed from the Assignors, all of the
Assignors' right, title and interest in and to those certain Lease Agreements
described on Exhibit B attached hereto and made a part hereof (as they may be
amended from time to time, collectively, the "First Closing Initial Leases");
WHEREAS, pursuant to that certain Holdback Agreement, dated as of the
date hereof (as it may be amended from time to time, the "Holdback Agreement"),
among Marriott International Inc., a Delaware corporation ("Marriott"), the
Assignors and Tenant, the parties thereto arranged for the transfer of the Old
Security Deposits (as defined in the Holdback Agreement) to Tenant;
WHEREAS, pursuant to those certain Lease Agreements described on
Exhibit C hereto (as they may be amended from time to time, collectively, the
"Additional Leases" and, together with the Initial Leases, collectively, the
"Leases"), the Landlords have leased to Tenant, and Tenant has leased from the
Landlords, certain properties as more particularly described in such Additional
Leases;
WHEREAS, pursuant to those certain Franchise Agreements described on
Exhibit D hereto (as they may be amended from time to time, collectively, the
"Franchise Agreements"), Tenant and Marriott have arranged for the properties
being leased by Tenant pursuant to the First Closing Initial Leases and the
Additional Leases (collectively, the "First Closing Leases") to be operated as
various Marriott brand hotels;
WHEREAS, pursuant to those certain Management Agreements described on
Exhibit E hereto (as they may be amended from time to time, collectively, the
"Management Agreements"), Tenant has agreed to engage various managers to
manage, and such managers have agreed to be engaged to manage, those properties
being leased by Tenant pursuant to the First Closing Leases;
WHEREAS, pursuant to the terms of that certain Guaranty, dated as of
the date hereof (as the same may be amended from time to time, the "Guaranty")
by Marriott, Marriott has guaranteed to Tenant the payment of certain sums due
to Tenant under the Management Agreements; and
WHEREAS, pursuant to that certain Pooling Agreement, dated as of the
date hereof (as the same may be amended from time to time, the "Pooling
Agreement"), by and among Marriott, each of the mangers under the Management
Agreements and Tenant, among others, the parties thereto have agreed to pool
certain revenues and costs which are subject to the Leases;
WHEREAS, Landlord and Tenant desire to amend the First Closing Leases
as hereinafter provided in order to reflect all of the foregoing.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Capitalized terms used and not otherwise defined herein shall have
the meanings given such terms in the Leases or in the Agreement to Assign, as
applicable (except as otherwise indicated herein).
2. The term "Collective Leased Properties" as used in each of the First
Closing Leases shall mean, collectively, the Leased Property under each of the
First Closing Leases and the Initial Leases, but only to the extent that such
Initial Leases have been assigned to Tenant. Provided, however, that for
purposes of Sections 5.1.2, 15.2(c) and 20.1 of the Additional Leases, the term
"Collective Leased Properties" shall mean all of the Leased Properties under all
of the Leases.
3. The term "Incidental Documents" as used in each of the First Closing
Initial Leases shall mean, collectively, the Agreement to Assign, the applicable
Franchise Agreement, the applicable Management Agreement, the Owner Agreement,
the Guaranty, the Holdback Agreement and the Pooling Agreement.
4. The term "Other Leases" as used in each of the First Closing Leases
shall mean any of the other Additional Leases and Initial Leases, but only to
the extent that such Initial Leases have been assigned to Tenant. Provided,
however, that for purposes of Section 5.1.2 of the First Closing Leases, the
term "Other Leases" as used in each of the First Closing Leases shall mean all
of the other Leases.
5. Section 2.3 of each of the First Closing Leases is deleted in its
entirety and replaced with the following:
2.3 Fixed Term. The initial term of this Agreement (the "Fixed
Term") shall commence on the Commencement Date and shall expire on the
last day of the Fiscal Year 2019.
6. The first paragraph of Section 2.4 of each of the First Closing
Leases is deleted in its entirety and replaced with the following:
-2-
2.4 Extended Term. Provided that no Event of Default shall
have occurred and be continuing, the Term shall be automatically
extended for two (2) consecutive renewal terms of fifteen (15) years
each (collectively, the "Extended Terms"), unless Tenant shall give
Landlord Notice, in Tenant's sole and absolute discretion, not later
than two (2) years prior to the scheduled expiration of the then
current Term of this Agreement (Fixed or Extended, as the case may be),
that Tenant elects not so to extend the term of this Agreement (and
time shall be of the essence with respect to the giving of such
Notice).
7. Notwithstanding anything contained in Section 6 of this Agreement to
the contrary, the first paragraph of Section 2.4 of the First Closing Leases for
the Leased Properties located in California is deleted in its entirety and
replaced with the following:
2.4 Extended Term. Provided that no Event of Default shall have
occurred and be continuing, the Term shall be automatically extended
for one (1) consecutive renewal term of fifteen (15) years (the
"Extended Term"), unless Tenant shall give Landlord Notice, in Tenant's
sole and absolute discretion, not later than two (2) years prior to the
scheduled expiration of the Fixed Term of this Agreement, that Tenant
elects not so to extend the term of this Agreement (and time shall be
of the essence with respect to the giving of such Notice).
8. Notwithstanding anything contained in Section 3.1.2 of the First
Closing Leases, so long as the applicable Management Agreement or the Pooling
Agreement is in effect with respect to the Leased Property demised under such
First Closing Lease, Tenant shall pay Additional Rent to Landlord promptly upon
Tenant's receipt of its payment of Tenant's Second Priority (as defined in the
applicable Management Agreement) or Aggregate Tenant's Second Priority (as
defined in the Pooling Agreement).
9. A new Section 3.1.4 is added to each of the First Closing Leases, as
follows:
3.1.4 Periodic Adjustments to Minimum Rent and Additional
Rent. Commencing on July 31, 2005 and on every fifth anniversary
thereof throughout the Term (each such date being a "Rent Adjustment
Date"), the Minimum Rent and Additional Rent shall be adjusted to the
fair market fixed rent and percentage rent, respectively, for the
Leased Property for the five-year period commencing on such Rent
Adjustment Date. If Landlord and Tenant fail to agree upon such fair
market rents by the applicable Rent Adjustment Date, then, at any time
after such Rent Adjustment Date, the Minimum Rent and Additional Rent
for the five-year period commencing on such Rent Adjustment Date shall
be finally determined by arbitration in accordance with Section 19.2.
If the Minimum Rent or Additional Rent for any such five-year period is
not determined prior to any Rent Adjustment Date as aforesaid, Tenant
shall continue to pay Minimum Rent and Additional Rent at their
then-current rates and Landlord and Tenant shall make appropriate "true
up" adjustments promptly after the Minimum Rent and Additional Rent are
finally determined in accordance with such arbitration as aforesaid.
10. Notwithstanding the terms of Section 3.2 of each of the First
Closing Leases, no late charge shall be due from Tenant if Tenant shall fail to
pay Minimum Rent or Additional Rent when due, provided that Aggregate Gross
Revenues (as defined in the Pooling Agreement)
-3-
and/or Gross Revenues (as defined in the applicable Management Agreement) are
applied in accordance with the terms of the Pooling Agreement or such Management
Agreement.
11. Section 3.5 of each of the First Closing Leases is deleted in its
entirety and replaced with the following:
3.5 Security for Tenant's Performance. As additional security
for the performance of Tenant's obligations under this Agreement,
Tenant hereby grants to Landlord a lien upon and a security interest
in, all of Tenant's right, title and interest in, to and under the
following, whether now existing or hereafter acquired, created or
arising (the "Collateral"): the Guaranty, the Holdback Agreement, the
Management Agreement and the Pooling Agreement, as the same may be
amended or otherwise modified from time to time, including, without
limitation (i) all rights of Tenant to receive moneys due and to become
due under or pursuant to any of the foregoing, (ii) claims of Tenant
for damages arising out of or for breach of or default under any of the
foregoing, (iii) the right of Tenant to exercise any rights and
remedies under the foregoing, and (iv) to the extent not included in
the foregoing, all proceeds of any and all of the foregoing. Tenant
shall execute, acknowledge and deliver to Landlord financing statements
and any other documents submitted to Tenant in form reasonably
acceptable to Tenant evidencing or establishing such liens and security
interests. In addition to and without limiting the foregoing, Tenant
shall deliver original counterparts of any of the foregoing documents
to Landlord promptly upon Landlord's request therefor to be held by
Landlord as security in accordance with the terms of this Section.
12. Section 5.1.2(f) of each of the Additional Leases is hereby
deleted. It is understood and agreed that the Reserves under all of the Leases
shall be maintained and used on a consolidated basis such that all funds in such
Reserves shall be deposited in a single account and Assignors and TRS may apply
any funds therein to any of the Initial Properties or the Additional Properties
under the terms of Initial Leases and the Additional Leases as they shall
mutually agree, subject to the terms of any applicable Management Agreement and
the Pooling Agreement.
13. In addition to the other circumstances specified in Section 12.1 of
the First Closing Leases, if (a) either Assignor or any Affiliated Person as to
such Assignor shall fail to observe any of the terms, covenants or conditions to
be observed or performed by it under the Agreement to Assign, the Initial Leases
(to the extent that the same have not been assigned to Tenant pursuant to the
Agreement to Assign), the Guaranty, the Holdback Agreement, the applicable
Franchise Agreement, the applicable Management Agreement, the applicable Owner
Agreement or the Pooling Agreement beyond any applicable notice or grace period
provided for thereunder, then, in either case, the same shall constitute an
Event of Default under the First Closing Leases entitling Landlord to exercise
all of the rights and remedies reserved or otherwise available to Landlord in
the instance of any of the Events of Default specified therein.
14. Section 12.2 of each of the First Closing Initial Leases is amended
to delete the proviso at the end of the first sentence of the second paragraph
thereof.
15. Section 12.6 of each of the First Closing Initial Leases is
deleted. Notwithstanding any term or provision to the contrary in the First
Closing Initial Leases or
-4-
herein, in the event that the First Closing Initial Leases are terminated
pursuant to Section 12.1 or 12.2 thereof, Landlord shall apply the Retained
Funds in accordance with the terms and conditions of the Holdback Agreement.
16. Section 15.2 of each of the First Closing Initial Leases is
deleted. Any transfer of a Leased Property permitted by Section 15.1 of a Lease
shall be subject to the prior or simultaneous satisfaction of the following
conditions:
(a) The Retained Funds with respect to the Leased Property
shall be applied in accordance with the terms and conditions of the
Holdback Agreement;
(b) The term "Other Leases" set forth in the Lease for such
Leased Property shall be amended to eliminate any references to any of
the Leases that are not simultaneously transferred to the successor to
Landlord under such Lease, and the reference to "Other Leases" set
forth in the other Leases not so simultaneously transferred shall no
longer include the Lease for such Leased Property;
(c) If Landlord's interest under a Lease shall be transferred
other than in connection with a transfer of Landlord's interest under
all of the Leases to the same transferee, a portion of the then current
balance in the Reserve shall be allocated to the Leased Property under
such Lease, as reasonably determined by Manager based on Manager's
reasonable and good faith estimate as to such Leased Property's
projected requirements for Reserve fundings relative to the projected
requirements for Reserve fundings for the other Leased Properties under
the Leases;
(d) Any transferee of Landlord pursuant to Article 15 of a
Lease shall expressly assume in writing the obligations of Landlord
under such Lease; and
(e) Any overpayments of Additional Rent held by Landlord shall
be refunded to Tenant prior to such transfer.
17. The second (2nd) paragraph Section 16.1 of each of the First
Closing Initial Leases is deleted.
18. Clause (b) of Section 16.3 of each of the First Closing Initial
Leases is deleted.
19. Section 16.5 of each of the First Closing Initial Leases is deleted
20. Section 21.5 of each of the First Closing Initial Leases is
deleted.
21. Section 21.6 of each of the First Closing Initial Leases is
deleted.
22. Section 21.7 of each of the First Closing Initial Leases is
deleted.
23. Section 22.10 of each of the First Closing Initial Leases is
amended so that the notice address for Tenant thereunder shall be as follows:
-5-
c/o Hospitality Properties Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
[Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇]
with a copy to:
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Sander ▇. ▇▇▇, Esq.
[Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇]
24. With respect to the First Closing Initial Leases, Landlord and
Tenant acknowledge that Marriott is no longer the "Guarantor" thereunder and all
references to "Guarantor" as such are hereby deleted. Nothing contained in this
Section 24 shall be deemed to limit or otherwise modify Marriott's obligations
under the Holdback Agreement or the Guaranty.
25. Tenant shall not terminate, amend or modify the Agreement to
Assign, the Guaranty, the Holdback Agreement, the applicable Franchise
Agreement, the applicable Management Agreement or the Pooling Agreement without
the prior written consent of Landlord.
26. The parties hereto do hereby agree to perform, execute and/or
deliver or cause to be performed, executed and/or delivered any and all such
further agreements and assurances as either of the parties hereto may reasonably
require to consummate the transactions contemplated hereunder.
27. This Amendment shall be binding upon and inure to the benefit of
each party and its successors and assigns permitted under the applicable
provisions of the First Closing Leases.
28. Except as amended hereby, the First Closing Leases are unmodified,
are in full force and effect and are hereby ratified and confirmed. Any
reference on any future correspondence, document or instrument to any First
Closing Lease shall be deemed to refer to such First Closing Lease as amended
hereby unless the context otherwise requires.
29. HPTMI HEREBY NOTIFIES THE OTHER PARTIES HERETO THAT THE DECLARATION
OF TRUST OF HPTMI PROPERTIES TRUST PROVIDES, AND THE OTHER PARTIES HERETO AGREE,
THAT NO TRUSTEE, OFFICER, DIRECTOR, GENERAL OR LIMITED PARTNER, MEMBER,
SHAREHOLDER, BENEFICIARY, EMPLOYEE OR AGENT (INCLUDING ANY PERSON OR ENTITY FROM
TIME TO TIME ENGAGED TO SUPERVISE AND/OR MANAGE THE OPERATION OF HPTMI) OF HPTMI
SHALL BE HELD TO ANY LIABILITY, JOINTLY OR SEVERALLY, FOR ANY DEBT, CLAIM,
DEMAND, JUDGMENT, DECREE, LIABILITY OR OBLIGATION OF ANY KIND (IN TORT, CONTRACT
OR OTHERWISE) OF, AGAINST OR WITH RESPECT TO HPTMI OR ARISING OUT OF ANY ACTION
TAKEN OR OMITTED FOR OR ON BEHALF OF HPTMI.
-6-
IN WITNESS WHEREOF, the parties have executed this Amendment as a
sealed instrument as of the date above written.
HPTMI PROPERTIES TRUST,
a Maryland real estate investment trust
By:
----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
HPTMI HAWAII, INC.,
a Delaware corporation
By:
----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
HPT TRS MI-135, INC.,
a Delaware corporation
By:
----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
By its execution hereof, the undersigned evidences its consent to the foregoing,
including, without limitation, the collateral assignment of Tenant's right,
title and interest in and to the Guaranty and the Holdback Agreement.
MARRIOTT INTERNATIONAL, INC.,
a Delaware corporation
By:
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Signatory
-7-
By their execution hereof, each of the undersigned managers under the Management
Agreements applicable to the First Closing Leases evidences its consent to the
foregoing.
COURTYARD MANAGEMENT CORPORATION
By:
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
SPRINGHILL SMC CORPORATION
By:
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
SPRINGHILL SMC CORPORATION
By:
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
-8-
EXHIBIT E
Assignment Agreement
[see attached]
ASSIGNMENT AND
ASSUMPTION OF LEASE AGREEMENTS
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENTS (this "Assignment")
is made as of the ____ day of June, 2001 by and among CR14 TENANT CORPORATION, a
Delaware corporation ("CR14"), CRTM17 TENANT CORPORATION, a Delaware corporation
("CRTM17" and, together with CR14, collectively, the "Assignors"), HPT TRS
MI-135, INC., a Delaware corporation ("Assignee"), and HPTMI PROPERTIES TRUST, a
Maryland real estate investment trust ("Landlord").
W I T N E S S E T H :
WHEREAS, the Assignors, Assignee and Landlord, among others, entered
into that certain Agreement to Assign, Release, Franchise and Manage, dated as
of the date hereof (the "Agreement to Assign"), pursuant to which, inter alia,
the Assignors agreed to assign, and Assignee agreed to assume, the Lease
Agreements described on Schedule A attached hereto and made a part hereof
(collectively, as the same may be amended, modified or further assigned, the
"Leases"); and
WHEREAS, this Agreement is being delivered pursuant to the Agreement to
Assign.
NOW, THEREFORE, in accordance with the Agreement to Assign and in
consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. The Assignors do hereby irrevocably transfer and assign to Assignee
all of the right, title and interest of the Assignors in, to and under the
Leases, including, without limitation, any right, title or interest of the
Assignors in, to and under the Reserves (as such term is defined in the Leases).
Subject to the terms of the Agreement to Assign, including, without limitation,
Section 18 thereof, Assignee hereby assumes and agrees to pay, perform and
discharge when due all of the liabilities, obligations and duties of the
Assignors under the Leases arising after date hereof. Landlord hereby consents
to the assignment of the Leases to Assignee and releases the Assignors from all
of the liabilities, obligations and duties of the Assignors under the Leases
arising after the date hereof and from any other liabilities, obligations and
duties that have been assumed by Assignor pursuant to the Agreement to Assign,
including, without limitation, Section 18 thereof.
2. The parties hereto do hereby agree to perform, execute and/or
deliver or cause to be performed, executed and/or delivered any and all such
further agreements and assurances as either of the parties hereto may reasonably
require to consummate the transactions contemplated hereunder.
3. This Agreement is entered pursuant and subject to the terms of the
Agreement to Assign, and in the event of a conflict between the terms hereof and
thereof, the terms of the Agreement to Assign shall prevail.
IN WITNESS WHEREOF, each party has caused this Assignment to be duly
executed and delivered in its name and on its behalf, as of the date first above
written.
ASSIGNORS:
CR14 TENANT CORPORATION,
a Delaware corporation
By:
---------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
CRTM17 TENANT CORPORATION,
a Delaware corporation
By:
---------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
ASSIGNEE:
HPT TRS MI-135, INC.,
a Delaware corporation
By:
---------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
LANDLORD:
HPTMI PROPERTIES TRUST,
a Maryland real estate investment trust
By:
---------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President
EXHIBIT A
The Leases
[See attached copy.]
EXHIBIT F
Franchise Agreements
1. Franchise Agreement, dated as of June 15, 2001, by and between Marriott
International, Inc. and HPT TRS MI-135, INC. (Emeryville, California -
Courtyard).
2. Franchise Agreement, dated as of June 15, 2001, by and between Marriott
International, Inc. and HPT TRS MI-135, INC. (Renton, Washington -
SpringHill).
3. Franchise Agreement, dated as of June 15, 2001, by and between Marriott
International, Inc. and HPT TRS MI-135, INC. (Renton, Washington -
TownePlace).
4. Franchise Agreement, dated as of June 15, 2001, by and between Marriott
International, Inc. and HPT TRS MI-135, INC. (Richmond, Virginia -
TownePlace).
5. Franchise Agreement, dated as of June 15, 2001, by and between Marriott
International, Inc. and HPT TRS MI-135, INC. (Chicago, Illinois -
TownePlace).
6. Franchise Agreement, dated as of June 15, 2001, by and between Marriott
International, Inc. and HPT TRS MI-135, INC. (Detroit, Michigan -
TownePlace).
7. Franchise Agreement, dated as of June 15, 2001, by and between Marriott
International, Inc. and HPT TRS
MI-135, INC. (Fresno, California - Residence Inn).
8. Franchise Agreement, dated as of June 15, 2001, by and between Marriott
International, Inc. and HPT TRS MI-135, INC. (Fort Worth, Texas -
Courtyard).
9. Franchise Agreement, dated as of June 15, 2001, by and between Marriott
International, Inc. and HPT TRS MI-135, INC. (Atlanta, Georgia -
Residence Inn).
EXHIBIT G
Management Agreement
[This document has been separately filed as Exhibit 10.2 to the 8-K]
EXHIBIT H
Termination Agreement
[see attached]
Detroit/Novi, MI
TownePlace
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is made and entered into
as of this 15th day of June, 2001 (the "Effective Date"), by and among HPTMI
PROPERTIES TRUST, a Maryland real estate investment trust ("HPTMI"), MARRIOTT
INTERNATIONAL, INC., a Delaware corporation ("Marriott"), and CRTM17 TENANT
CORPORATION, a Delaware corporation ("CRTM17").
W I T N E S S E T H
WHEREAS, HPTMI III Properties Trust, a Maryland real estate investment
trust ("HPTMI III"), and CRTM17 entered into that certain Lease Agreement, dated
as of October 15, 1999 (the "Lease"), pursuant to which HPTMI III leased to
CRTM17, and CRTM17 leases from HPTMI III, certain Leased Property (this and
other capitalized terms used and not defined herein shall have the meanings
given such term in the Lease), including, without limitation, a hotel and
certain related improvements located on the real property described on Exhibit A
attached hereto and made a part hereof, all in accordance with the terms of such
Lease; and
WHEREAS, Marriott and CRTM17 entered into that certain Franchise
Agreement, dated as of October, 1999 (the "Franchise Agreement"), pursuant to
which Marriott granted to CRTM17 a franchise to operate, and CRTM17 agreed to
operate, a TownePlace Suites by Marriott hotel on the Leased Property, all in
accordance with the terms of such Franchise Agreement; and
WHEREAS, Marriott, CRTM17 and HPTMI III entered into that certain Owner
Agreement, dated as of October 15, 1999 (the "Owner Agreement"), pursuant to
which HPTMI III, Marriott and CRTM17 agreed that the Leased Property would
continue to be operated as a TownePlace Suites by Marriott hotel following a
default by CRTM17 under either the Lease or the Franchise Agreement; all in
accordance with the terms of such Owner Agreement; and
WHEREAS, HPTMI has succeeded to the interests of HPTMI III under the
Lease, the Franchise Agreement and the Owner Agreement, pursuant to the merger
of HPTMI III with and into HPTMI, dated as of June 14, 2001; and
WHEREAS, CRTM17 and HPT TRS MI-135, INC. ("TRS") are entering into an
Assignment and Assumption Agreement, dated as of the Effective Date, pursuant to
which CRTM17 will assign to TRS, and TRS will assume from CRTM17, all of
CRTM17's right, title and interest in and to the Lease; and
WHEREAS, the current terms of the Franchise Agreement and the Owner
Agreement are scheduled to expire on the last day of the last Accounting Period
of Fiscal Year 2013; and
WHEREAS, in connection with the aforesaid assignment, HPTMI, Marriott
and CRTM17 desire to terminate the terms of the Franchise Agreement and the
Owner Agreement as of the Effective Date;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the mutual receipt and legal sufficiency of which are
hereby acknowledged, HPTMI, Marriott and CRTM17 hereby agree as follows:
1. Effective as of the Effective Date, the terms of the Franchise
Agreement and the Owner Agreement shall be terminated as if the Effective Date
were the date on which the terms of the Franchise Agreement and the Owner
Agreement were originally scheduled to expire.
2. CRTM17 represents that (i) it has not transferred or assigned any
portion of its interest under the Franchise Agreement or the Owner Agreement
such that any such transfer or assignment would be in effect as of the Effective
Date and (ii) it has received all consents and approvals required for it to
enter into this Agreement.
3. Marriott represents that (i) it has not transferred or assigned any
portion of its interest under the Franchise Agreement or the Owner Agreement
such that any such transfer or assignment would be in effect as of the Effective
Date and (ii) it has received all consents and approvals required for it to
enter into this Agreement.
4. HPTMI represents that (i) it has not transferred or assigned any
portion of its interest under the Owner Agreement such that any such transfer or
assignment would be in effect as of the Effective Date and (ii) it has received
all consents and approvals required for it to enter into this Agreement.
5. IN ADDITION TO ALL OTHER LIMITATIONS CONTAINED IN THE LEASE AND THE
OWNER AGREEMENT, HPTMI HEREBY NOTIFIES MARRIOTT AND CRTM17 THAT THE DECLARATION
OF TRUST OF HPTMI PROVIDES AND MARRIOTT AND CRTM17 HEREBY AGREE, THAT NO
TRUSTEE, OFFICER, DIRECTOR, GENERAL OR LIMITED PARTNER, MEMBER, SHAREHOLDER,
BENEFICIARY, EMPLOYEE OR AGENT (INCLUDING ANY PERSON OR ENTITY FROM TIME TO TIME
ENGAGED TO SUPERVISE AND OR MANAGE THE OPERATION OF HPTMI) OF HPTMI SHALL BE
HELD TO ANY LIABILITY, JOINTLY OR SEVERALLY, FOR ANY DEBT, CLAIM, DEMAND,
JUDGMENT, DECREE, LIABILITY OR OBLIGATION OF ANY KIND (IN TORT, CONTRACT OR
OTHERWISE) OF, AGAINST OR WITH RESPECT TO HPTMI OR ARISING OUT OF ANY ACTION
TAKEN OR OMITTED FOR OR ON BEHALF OF HPTMI.
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IN WITNESS WHEREOF, HPTMI, Marriott and CRTM17 have caused this
Agreement to be duly executed, as a sealed instrument, as of the date first
above written.
HPTMI:
HPTMI PROPERTIES TRUST,
a Maryland real estate investment trust
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇
President
MARRIOTT:
MARRIOTT INTERNATIONAL, INC.,
a Delaware corporation
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Authorized Signatory
CRTM17:
CRTM17 TENANT CORPORATION,
a Delaware corporation
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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EXHIBIT A
Legal Description of Real Property
[See attached copy.]
EXHIBIT I
Pro Rations Requirements
[see attached]
Apportionments
All apportionments pursuant Section 18(a) of the Agreement to Lease and
Manage shall be based upon the total revenues and expenses for the Accounting
Period in which the Closing Date occurs.
In the case of the Closing which is occurring on the First Closing Date
(which is the last day of the current Accounting Period with respect to all of
the First Closing Properties except for the Kauai Property), all such revenues
and expenses related to all of the First Closing Properties except Kauai shall
be allocated 100% to MI and the applicable Managers (for the four weeks in the
current Accounting Period with respect to such Properties through the Closing
Date). Thereafter, starting with the first day of the next Accounting Period,
all such revenues and expenses related to such Properties shall be allocated
100% to the New Tenant.
With respect to the Kauai Property, all such revenues and expenses
shall be allocated 50% to MI and the applicable Manager (for the first fifteen
days of the current Accounting Period for the Kauai Property through the First
Closing Date) and 50% to the New Tenant (for the final fifteen days of such
Accounting Period following the First Closing Date).
Any amounts payable by the New Tenant pursuant to such apportionment
shall be handled pursuant to the Pooling Agreement.