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CONSENT TO ASSIGNMENT, FIFTH AMENDMENT TO LEASE
AGREEMENT AND AMENDMENT TO INCIDENTAL DOCUMENTS
THIS CONSENT TO ASSIGNMENT, FIFTH AMENDMENT TO LEASE AGREEMENT AND
AMENDMENT TO INCIDENTAL DOCUMENTS (this "AGREEMENT") is entered into as of the
9th day of July, 2000, by and among HPT SUITE PROPERTIES TRUST, a Maryland real
estate investment trust ("LANDLORD"), SUITE TENANT, INC., a Tennessee
corporation ("ASSIGNOR") and ▇▇▇▇ ROCK HOLDING CORP., a Delaware corporation
("ASSIGNEE").
W I T N E S S E T H:
WHEREAS, Landlord and Assignor entered into a Lease Agreement, dated as
of November 19, 1997, as amended by two (2) letters dated November 19, 1997, the
First Amendment to Lease Agreement, dated as of March 5, 1999, the Second
Amendment to Lease Agreement and First Amendment to Incidental Documents (the
"SECOND AMENDMENT"), dated as of June 29, 1999, a letter dated June 29, 1999,
the Third Amendment to Lease Agreement dated as of March 3, 2000 and the Fourth
Amendment to Lease Agreement and Amendment to Incidental Documents (the "FOURTH
AMENDMENT"), dated as of May 11, 2000 (as so amended, the "LEASE"), a copy of
which Lease is attached hereto as Exhibit A hereto;
WHEREAS, Assignor simultaneously herewith has assigned, and Assignee
has assumed, the Lease, and Landlord is willing to consent to such assignment
and assumption subject to and upon the terms and conditions set forth in this
Agreement; and
WHEREAS, Assignee and Landlord desire to amend the Lease as herein
after provided (the Lease as amended by this Agreement, the "AMENDED LEASE").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. ASSIGNMENT AND ASSUMPTION. (a)Each of Assignor and Assignee
represents and warrants to Landlord that pursuant to a separate instrument (i)
Assignor has irrevocably and absolutely assigned all of Assignor's right, title
and interest in, to and under the Lease to Assignee effective as of the date
hereof, (ii) except as may be expressly provided herein, Assignee has
irrevocably and absolutely (A) assumed and agreed to discharge all of Assignor's
obligations under the Lease arising from and after the date hereof and (B)
agreed to be bound by all of the terms, covenants and conditions of the Lease
binding upon the Tenant thereunder from and after the date hereof and (iii) such
assignment and assumption are effective as of the date hereof.
(b) Each of Assignee and Assignor also warrants and represents that
simultaneously herewith, (i) ShoLodge has assigned to Prime Hospitality Corp.
("PRIME") all of ShoLodge's right, title and interest in and to the Guaranty
Deposit held under that certain Limited Guaranty Agreement, dated as of November
19, 1997, made by ShoLodge for the benefit of Landlord and Hospitality
Properties Trust as amended and supplemented by two (2) letters dated November
19,1999, the Second Amendment and the Fourth Amendment (as so amended and
supplemented,
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the "GUARANTY") and (ii) Prime has contributed to Assignee all of Prime's right
to receive interest on the Guaranty Deposit pursuant to the terms of this
Agreement attributable to the Term.
(c) Landlord hereby consents to the such assignments and assumption.
This consent does not constitute consent to any further assignment, mortgage,
pledge, hypothecation, encumbrance or other transfer of the Guaranty Deposit or
the Amended Lease or any subletting or by Assignee, which shall, in each case,
require Landlord's further consent except to the extent such consent is
expressly not required pursuant to the terms of Section 16.3 of the Amended
Lease. Assignor and Assignee acknowledge and agree that other than for a copy of
the instruments of such assignment and assumption, Landlord has not been
provided with, reviewed or consented to any of the transactions between Assignor
(and its affiliates) and Assignee (and its affiliates). Accordingly, Landlord
shall in no way be deemed to have consented to, approved, bound by or subject to
such transactions or the terms thereof.
2. REPRESENTATIONS OF ASSIGNEE ETC. As an inducement to Landlord to
enter into this Agreement, Assignee represents and warrants to Landlord and
Assignor, as of the date hereof:
(a) STATUS AND AUTHORITY OF ASSIGNEE, ETC. Assignee is a corporation
duly organized and validly existing under the laws of its state of incorporation
and has all requisite power and authority (corporate and other) under the laws
of such state and its respective charter documents to own its property and
assets, to enter into and perform its obligations under the Amended Lease and
this Agreement and to transact the business in which it is engaged or presently
proposes to engage. Assignee is duly qualified in each jurisdiction in which the
nature of the business conducted or to be conducted by it requires such
qualification, except where failure to do so could not reasonably be expected to
have a material adverse effect.
(b) CORPORATE ACTION OF ASSIGNEE, ETC. Assignee has taken all necessary
action (corporate or other) under its charter documents to authorize the
assumption and performance of the Amended Lease and the execution, delivery and
performance of this Agreement, and the Amended Lease and this Agreement
constitute the valid and binding obligations and agreements of Assignee
enforceable in accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization or similar laws of general application affecting the
rights and remedies of creditors.
(c) NO VIOLATIONS OF OTHER AGREEMENTS, ETC. None of the assumption of
the Amended Lease, the execution and delivery of this Agreement by Assignee, and
compliance with the terms and provisions thereof and hereof, 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 Assignee pursuant to the terms of any indenture,
mortgage, deed of trust, note, evidence of indebtedness, agreement or other
instrument to which Assignee may be a party or by which it or its property is
bound, or violate any provisions of laws, or any applicable order, writ,
injunction, judgment or decree of any court, or any order or other public
regulation of any governmental commission, bureau or administrative agency.
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(d) JUDGMENTS; LITIGATION. There are no judgments presently outstanding
and unsatisfied against Assignee or any of its properties, and none of Assignee
or any of its properties are involved in any material litigation at law or in
equity, or any proceeding before any court, or by or before any governmental or
administrative agency, which litigation or proceeding could materially and
adversely affect Assignee, and no such material litigation or proceeding is, to
the knowledge of Assignee, threatened against Assignee, and no investigation
looking toward such a proceeding has begun or is contemplated.
(e) DISCLOSURE. To the knowledge of Assignee, neither this Agreement
nor any other document, certificate or statement furnished to Landlord or its
affiliates, by or on behalf of Assignee, in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading. To the knowledge of Assignee, there is no fact or
condition which materially and adversely affects the business, operations,
affairs, properties or condition of Assignee which has not been set forth in
this Agreement or in the other documents, certificates or statements furnished
to Landlord in connection with the transactions contemplated hereby.
(f) BROKERAGE. Assignee dealt with no broker, finder or like agent in
connection with this Agreement or the transactions contemplated hereby.
(g) SALE. Simultaneously with the execution and delivery hereof,
Assignee has acquired from Assignor all of Assignor's right, title and interest
in and to all tangible personal property used or useful in connection with the
operation of the Properties, the FF&E Reserve and the Retained Funds, free and
clear of all liens, claims and encumbrances other than those in favor of
Landlord.
(h) PRIME. All of the issued and outstanding stock of Assignee is held
by Prime, free and clear of all liens, claims, assertions and encumbrances other
than those in favor of Landlord. Assignee shall not have any other outstanding
stock.
(i) BANKRUPTCY REMOTE. Assignee has (i) not sought or consented to any
dissolution, winding up, liquidation, consolidation, merger or sale of all or
substantially all of its assets, (ii) not failed to correct any known
misunderstanding regarding its separate identity, (iii) maintained its accounts,
books and records separate from any other Person, (iv) maintained its books,
records, resolutions and agreements as official records, (v) not commingled its
funds or assets with those of any other Person and has held its assets in its
own name, (vi) conducted its business in its own name, (vii) maintained its
financial statements, accounting records and other entity documents separate
from any other Person, (viii) paid its own liabilities out of its own funds and
assets, (ix) observed all organizational formalities, (x) not assumed or
guaranteed or become obligated for the debts of any other Person or held out its
credit as being available to satisfy the obligations of any other Person, (xi)
not acquired obligations or securities of its members or shareholders, (xii)
allocated fairly and reasonably any overhead for shared office space and used
separate stationery, invoices and checks, (xiii) not pledged any of its assets
for the benefit of any other Person, (xiv) held and identified itself as a
separate and distinct entity under its own name and not as a division or part of
any other Person, (xv) not made any loans to any Person, (xvi) not
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identified its members or shareholders, or any of its Affiliates as a division
or part of it, or (xvii) not entered into or become a party to any transaction
with its members or shareholders, or its Affiliates except the Amended Lease,
this Agreement and the Incidental Documents or in the ordinary course of its
business and, in each case, on terms which are fair and are no less favorable to
it than would be obtained in a comparable arm's length transaction with an
unrelated third party, (xviii) not filed a bankruptcy or insolvency petition or
otherwise instituted insolvency proceedings with respect to itself or to any
other entity in which it has a direct or indirect legal or beneficial ownership
interest, (xix) paid the salaries of its own employees and maintained a
sufficient number of employees in light of its business operations, (xx)
maintained adequate capital in light of its contemplated business operations or
(xxi) not engaged in any business activity other than the leasing, operating and
owning of the Leased Premises for its Permitted Use as stated in its
organizational documents.
Assignee's liability with respect to the representations and warranties
set forth in this Agreement shall survive the execution and delivery hereof.
3. REPRESENTATIONS OF ASSIGNOR ETC. As an inducement to Landlord to
enter into this Agreement, Assignor represents and warrants to Landlord and
Assignee, as of the date hereof:
(a) STATUS AND AUTHORITY OF ASSIGNOR , ETC. Assignor is a corporation
duly organized and validly existing under the laws of its state of incorporation
and has all requisite power and authority (corporate and other) under the laws
of such state and its respective charter documents to own its property and
assets, to enter into and perform its obligations under this Agreement and to
transact the business in which it is engaged or presently proposes to engage.
Assignor is duly qualified in each jurisdiction in which the nature of the
business conducted or to be conducted by it requires such qualification, except
where failure to do so could not reasonably be expected to have a material
adverse effect.
(b) CORPORATE ACTION OF ASSIGNOR, ETC. Assignor has taken all necessary
action (corporate or other) under its charter documents to authorize the
execution, delivery and performance of this Agreement, and this Agreement
constitutes the valid and binding obligation and agreement of Assignor
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization or similar laws of general application affecting the
rights and remedies of creditors.
(c) NO VIOLATIONS OF OTHER AGREEMENTS, ETC. Neither the execution and
delivery of this Agreement by Assignor, nor compliance with the terms and
provisions 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
Assignor pursuant to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness, agreement or other instrument to which Assignor may be
a party or by which it or its property is bound, or violate any provisions of
laws, or any applicable order, writ, injunction, judgment or decree of any
court, or any order or other public regulation of any governmental commission,
bureau or administrative agency.
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(d) JUDGMENTS; LITIGATION. There are no judgments presently outstanding
and unsatisfied against Assignor or any of its properties, and none of Assignor
or any of its properties are involved in any material litigation at law or in
equity, or any proceeding before any court, or by or before any governmental or
administrative agency, which litigation or proceeding could materially and
adversely affect Assignor, and no such material litigation or proceeding is, to
the knowledge of Assignor, threatened against Assignor, and no investigation
looking toward such a proceeding has begun or is contemplated.
(e) DISCLOSURE. To the knowledge of Assignor, neither this Agreement
nor any other document, certificate or statement furnished to Landlord or its
affiliate by or on behalf of Assignor, in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading. To the knowledge of Assignor, there is no fact or
condition which materially and adversely affects the business, operations,
affairs, properties or condition of Assignor which has not been set forth in
this Agreement or in the other documents, certificates or statements furnished
to Landlord in connection with the transactions contemplated hereby.
(f) BROKERAGE. Assignor dealt with no broker, finder or like agent in
connection with this Agreement or the transactions contemplated hereby.
(g) SALE. Simultaneously with the execution and delivery hereof,
Assignee has acquired from Assignor all of Assignor's right, title and interest
in and to all tangible personal property used or useful in connection with the
operation of the Properties, the FF&E Reserve, and the Retained Funds, free and
clear of all liens, claims and encumbrances other than those in favor of
Landlord.
(h) THE LEASE. The Lease (a true, correct and complete copy of which is
attached to this Agreement as Exhibit A) is in full force and effect, there is
no Event of Default thereunder, there are no facts or circumstances which with
the giving of notice, the lapse of time or both would constitute such an Event
of Default and, to the knowledge of Assignor, Landlord has fully and faithfully
performed all of its obligations under the Lease and is not in default or breach
thereof. The amount of Retained Funds under the Lease is $25,575,200.00 and the
amount of the Guaranty Deposit is $14,000,000.
Assignor's liability with respect to the representations and warranties
set forth in this Agreement shall survive the execution and delivery hereof and
shall not be assumed by Assignee.
4. REPRESENTATIONS OF LANDLORD. Landlord represents and warrants to
Assignee as of the date hereof that:
(a) STATUS AND AUTHORITY OF LANDLORD. Landlord is a Maryland real
estate investment trust duly organized, validly existing and in good standing
under the laws of the State of Maryland, and has all requisite power and
authority under the laws of such state and under its charter documents to enter
into and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. Landlord has duly qualified and is in good
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standing as a trust or unincorporated business association in each jurisdiction
in which the nature of the business conducted by it requires such qualification,
except where failure to do so could not reasonably be expected to have a
material adverse effect.
(b) ACTION OF LANDLORD. Landlord has taken all necessary action to
authorize the execution, delivery and performance of the Amended Lease and this
Agreement, and each of them constitutes the valid and binding obligation and
agreement of Landlord, enforceable against Landlord in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application affecting the
rights and remedies of creditors.
(c) NO VIOLATIONS OF AGREEMENTS. None of the execution, delivery and
performance of the Lease and this Agreement by Landlord, and 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 Landlord pursuant to the terms of any indenture, mortgage, deed of
trust, note, evidence of indebtedness or any other agreement or instrument by
which Landlord or its property is bound, or violate any provisions of laws, or
any applicable order, writ, injunction, judgment or decree of any court, or any
order or other public regulation of any governmental commission, bureau or
administrative agency.
(d) JUDGMENTS; LITIGATION. There are no judgments presently outstanding
and unsatisfied against Landlord or any of its properties, and neither Landlord
nor any of its properties are involved in any material litigation at law or in
equity, or any proceeding before any court, or by or before any governmental or
administrative agency, which litigation or proceeding could materially and
adversely affect Landlord, and no such material litigation or proceeding is, to
the knowledge of Landlord, threatened against Landlord, and no investigation
looking toward such a proceeding has begun or is contemplated.
(e) THE LEASE. A true and complete copy of the Lease is attached hereto
as Exhibit A. Except as set forth in Exhibit A, the Lease has not been modified
or amended. Landlord has no knowledge of any Event of Default under the Lease or
of other circumstance which with notice, the lapse of time or both would
constitute such an Event of Default or the Lease not being in full force and
effect. The amount of Retained Funds is $25,575,200.00, and the amount of the
Guaranty Deposit is $14,000,000. Neither HPT nor Landlord has offset any
obligations of Assignor under the Lease against the Retained Funds or Guaranty
Deposit.
Landlord's liability with respect to the representations and warranties
set forth in this Agreement shall survive the execution and delivery hereof.
5. ADDITIONAL ASSIGNEE OBLIGATIONS. Simultaneously with the execution
and delivery hereof, Assignee shall cause each of the following to be delivered
to Landlord, each of which shall be satisfactory in form and substance to
Landlord:
(a) A security agreement with respect to all tangible personal property
owned or used by Assignee and used in connection with the operation of the
Properties, such security agreement
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to create a first lien and security interest in such property and to be
otherwise in form and substance satisfactory to Landlord (the "SECURITY
AGREEMENT");
(b) Such financing statements as Landlord may reasonably require;
(c) An assignment and security agreement with respect to the FF&E
Reserve, such assignment and security agreement to create a first lien in the
FF&E Reserve (the "FF&E PLEDGE");
(d) A stock pledge agreement with respect to all of the issued and
outstanding stock of Assignee, together with such stock and a stock power in
blank, each executed and delivered by Prime, such stock pledge and security
agreement to create a first lien and security interest in such shares (the
"STOCK PLEDGE");
(e) A subordination agreement from Prime for the benefit of, and in
form and substance satisfactory to, Landlord (the "SUBORDINATION AGREEMENT");
(f) A Deposit Account Control Agreement in form and substance
satisfactory to the Landlord executed and delivered by Assignee and the bank at
which the FF&E Reserve is maintained;
(g) An opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ with respect to the
bankruptcy remoteness of Assignee and the due execution, delivery and
enforceability of this Agreement and the other instruments and documents
executed in connection herewith by and against Assignee and Prime;
(h) Evidence regarding the due transfer of any liquor and other
licenses from Assignor to Assignee or, if any such transfer is still pending,
other evidence and assurances that the operations of the Properties and the
values thereof will not be adversely affected by reason of the pendency of such
transfer;
(i) Insurance Certificates evidencing that the insurance required under
the Lease is in full force and effect;
(j) Copies of all management agreements affecting the Properties not
previously delivered to Landlord;
(k) Tax lien and judgment searches with respect to Assignee and Prime
satisfactory to Landlord;
(l) Copies of Assignee's Charter or Certificate of Incorporation,
certified by the Secretary of State of the state of its incorporation;
(m) Evidence of the due execution and delivery hereof and the documents
executed in connection hereunder by Assignee and Prime (including certified
by-laws and incumbency certificates);
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(n) Evidence that Assignee is duly qualified to do business in each
jurisdiction in which any of the Properties is located;
(o) An Exchange Option Agreement to exchange the Property located in
Las Colinas, Texas (the "PRIME EXCHANGE PROPERTY"), for a new AmeriSuites
property currently under development in Utica, Michigan (the "MI OPTION"); and
(p) An amount equal to the Minimum Rent, Additional Rent and other
amounts payable under the Lease with respect to the month in which this
Agreement is executed which are not yet due and payable under the terms of the
Lease (without giving effect to the terms hereof). Assignee acknowledges and
agrees that "Total Hotel Sales" for the current Fiscal Year shall include all
revenue and receipt of every kind derived by Assignor or Assignee from operating
the Properties and the parts thereof.
6. ADDITIONAL ASSIGNOR OBLIGATIONS. Simultaneously with the execution
and delivery hereof, Assignor shall cause each of the following to be delivered
to Landlord, each of which shall be satisfactory in form and substance to
Landlord:
(a) Evidence that all management agreements between Assignor and its
affiliates with respect to any of the Properties have been terminated;
(b) An Exchange Option Agreement to exchange the property located in
Alpharetta, Georgia for a new AmeriSuites property to be built in Chantilly,
Virginia (the "VA OPTION");
(c) An Exchange Option Agreement to exchange the Property located in
Albuquerque, New Mexico for a new AmeriSuites property to be built in Mt.
Laurel, New Jersey (the "NJ OPTION"; the NJ Option, the MI Option and the VA
Option, each an "EXCHANGE OPTION", and collectively, the "EXCHANGE OPTIONS");
(d) A supplemental guaranty from Sholodge for the benefit of Landlord
(the "SUPPLEMENTAL GUARANTY"); and
(e) An opinion of Assignor's counsel with respect to the due execution,
delivery and enforceability of this Agreement, the VA Option, the NJ Option and
such supplemental guaranty.
7. ADDITIONAL OBLIGATIONS OF LANDLORD. Simultaneous herewith, Landlord
shall execute and deliver a partial release in favor of Assignor, in form and
substance satisfactory to Landlord.
8. CERTAIN AMENDMENTS.
(a) The following definitions are hereby inserted in Article 1 of the
Lease:
"Independent Director" shall mean a natural person who is not at the
time of initial appointment and has not been at any time during the preceding
five (5) years: (a) a stockholder, director (other than independent director for
other Affiliates that are bankruptcy remote single
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purpose entities), officer, employee, partner, member, trustee or
beneficial-interest holder of Tenant or any of its Affiliates; (b) a customer,
supplier or other Person who derives in any twelve month period in excess of
$50,000 of its purchases or revenues from its activities with Tenant or any of
its Affiliates, stockholders, directors, officers, employees, partners,
managers, members, trustees or beneficial-interest holders of any such customer,
supplier or other Person s; (c) a Person controlling or under common control
with any Person described in clause (a) or (b) above; or (d) a member of the
immediate family of any Person described in clause (a), (b) or (c) above. For
the purpose of this definition alone, an "Affiliate" of a Person is any other
Person (i) which owns beneficially, directly or indirectly, more than 5% of the
outstanding shares of the common stock or other voting securities of such first
Person or which is otherwise in control of such first Person, (ii) of which more
than 5% of the outstanding voting securities are owned beneficially, directly or
indirectly, by any Person described in clause (i) above, or (iii) which is
controlled by, or under common control with, any Person described in clause (i)
above; the terms "control" and "controlled by" shall have the meanings assigned
to them in Rule 405 under the Securities Act of 1933, as amended, and the rules
and regulations of the Securities and Exchange Commission promulgated
thereunder.
"Single Purpose Entity" shall mean a corporation, which, at all times
since its formation and thereafter, (i) was organized solely for the purpose of
(x) leasing the Leased Property for its Permitted Use or (y) guaranteeing the
Amended Lease, (ii) has not and will not engage in any business unrelated to
leasing the Leased Property for its Permitted Use or guaranteeing the Amended
Lease, (iii) has not and will not have any assets other than those related to
leasing the Leased Property for its Permitted Use or guaranteeing the Amended
Lease, (iv) except as otherwise expressly permitted by this Agreement, has not
and will not engage in, seek or consent to any dissolution, winding up,
liquidation, consolidation, merger, asset sale, or amendment of its articles of
incorporation , (v) has and will have at least one Independent Director, (vi)
the board of directors of such corporation may not take any action requiring the
unanimous affirmative vote of 100% of the members of the board of directors
unless all of the directors, including an Independent Director shall have
participated in such vote, (vii) has not and will not fail to correct any known
misunderstanding regarding the separate identity of such corporation, (viii)
without the unanimous consent of all of the directors and has not and will not
with respect to itself or to any other Person which it has a direct or indirect
legal or beneficial ownership interest (a) file or consent to a bankruptcy,
insolvency or reorganization petition or otherwise institute or consent to
insolvency proceedings or otherwise seek or consent to any relief under any laws
relating to the relief from debts or the protection of debtors generally; (b)
seek or consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian or any similar official for such Person or all or any
portion of such Person's properties; (c) make any assignment for the benefit of
such Person's creditors or (d) take any action that might cause such Person to
become insolvent, (ix) has maintained and will maintain its accounts, books and
records separate from any other Person, (x) has maintained and will maintain its
books, records, resolutions and agreements as official records, (xi) has not and
will not commingle its funds or assets with those of any other Person, (xii) has
held and will hold its assets in its own name, (xiii) has conducted and will
conduct its business in its name other than to operate, own or lease the Leased
Property using a service ▇▇▇▇ and/or under a trade name including the name
"AmeriSuites", (xiv) has maintained and will maintain its financial statements,
accounting records, and other entity documents separate from any other person,
(xv) has paid and will pay its liabilities, including salaries of any employees,
out of its own funds and assets,
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(xvi) has observed and will observe all corporate formalities, (xvii) has
maintained and will maintain an arms-length relationship with its affiliates,
(xviii) has no Indebtedness other than (1) amounts due under the Amended Lease
and (2) unsecured trade payables incurred in the ordinary course of business
relating to owning, leasing and operating the Leased Property which do not
exceed, at any time, a maximum amount of $1,000,000 and that are paid within
sixty (60) days of the date incurred, (xix) has not and will not assume or
guarantee or become obligated for the debts of any other Person or hold out its
credit as being available to satisfy the obligations of any other Person, (xx)
will not acquire obligations or securities of its partners, members or
shareholders, (xxi) has established and maintains an office though which it
conducts its business separate and apart from that of any of its Affiliates or
has allocated and will allocate fairly and reasonably shared expenses,
including, without limitation, shared office space and uses separate stationary,
invoices and checks, (xxii) except pursuant hereto and the Incidental Documents,
has not and will not pledge its assets for the benefit of any other Person,
(xxiii) has held and identified itself and will hold itself and its own name and
not as a division or part of any other Person and has not failed to correct any
known misunderstanding regarding its separate identity, (xxiv) has not made and
will not make loans to any Person, (xxv) has not and will not identify its
partners, members or shareholders, or any Affiliates of any of them as a
division or part of it, (xxvi) has not entered and will not enter into or be a
party to, any transaction with its partners, members, shareholders or its
Affiliates except in the ordinary course of its business and on terms which are
intrinsically fair and are no less favorable to it than would be obtained in a
comparable arms-length transaction with an unrelated third party, and (xxvii)
has maintained and will maintain adequate capital in light of its contemplated
business operations.
(b) The terms "Amended Lease" and "Prime" as used in the Lease shall
each have the meanings ascribed to each such term in this Agreement. The term
"Consent" as used in the Lease shall mean this Agreement.
(c) Section 2.3 of the Lease is hereby amended by deleting the date
"June 30, 2011" appearing therein and inserting the date "June 30, 2013" in its
place.
(d) Section 2.4 of the Lease is hereby amended by deleting "five (5)"
on the third line thereof and replacing it with "three (3)", and by deleting
"ten (10)" on that line and inserting "fifteen (15)" in its place.
(e) If any of the representations or warranties made herein by Assignee
shall be false or misleading in any material respect, the same shall constitute
a Event of Default under the Lease.
(f) All notices required or desired to be given under the Lease to
Assignee shall be addressed as follows:
c/o Prime Hospitality Corp.
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Prime Law Department
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(g) The term "Incidental Documents" as used in the Lease shall mean the
MI Option, the Guaranty, the Security Agreement, the FF&E Pledge, Subordination
Agreement and the Stock Pledge, as each of them may be amended from time to
time.
(h) The term "ShoLodge" as used in Sections 1.19, 12.1(k), 16.1, 17.2,
21.10 and 22.11 of the Lease shall mean Prime, and the term "ShoLodge" as used
in Section 12.1(e) of the Lease shall mean Prime or Guarantor.
(i) The term "ShoLodge Parties" as used in Section 12.1(f) of the Lease
shall mean Prime and/or Guarantor and the parenthetical "(as defined in the
Purchase Agreement)" in said Section is deleted.
(j) There is inserted in the Lease new Sections 12.1(l), 12.1(m), 12(n)
and (o) as follows:
(l) should Tenant fail to fully and faithfully observe the
terms of Section 21.11; or
(m) should there occur any other event of circumstance which
constitutes an Event of Default under this Agreement pursuant
to the terms of the Amended Lease; or
(n) should any petition be filed by or against the guarantor
under the Guaranty (the "Guarantor") under the Federal
bankruptcy laws, or should any other proceeding be instituted
by or against Guarantor seeking to adjudicate Guarantor a
bankrupt or insolvent, or seeking liquidation, reorganization,
arrangement, adjustment or composition of Guarantor's debts
under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for Guarantor or for any
substantial part of the property of Guarantor unless, in each
instance, within 30 days thereafter, Prime assumes the
obligations of the Guarantor under the Guaranty subject to (x)
the limitation that the Guarantor's liability thereunder is
limited to $14,000,000 and (y) the non-recourse provisions
thereof; or
(o) should any petition be filed by or against Prime under the
Federal bankruptcy laws, or should any other proceeding be
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instituted by or against Prime seeking to adjudicate Prime a
bankrupt or insolvent, or seeking liquidation, reorganization,
arrangement, adjustment or composition of Prime's debts under
any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or
other similar official for Prime or for any substantial part
of the property of Prime and such proceeding is not dismissed
within one hundred eighty (180) days after institution
thereof;
(k) On or before the later of March 31, 2001 and the date that is nine
(9) months after the date hereof, Assignee, at its own cost and expense, shall
cause the Leased Properties to be re-flagged as "AmeriSuites" hotels. All costs
and expenses of this re-flagging including, without limitation, new signage,
marketing materials and any new front desk system shall be paid by Prime. No
portion of such cost shall be paid for with funds from the FF&E Reserve. With
respect to each Property, upon such Property being so re-flagged: (i) the phrase
"▇▇▇▇▇▇ Suites" in Section 4.1.1(a) of the Lease shall be deemed deleted and
"AmeriSuites" is inserted in its place; and (ii) the third sentence of Section
4.1.1(a) of the Lease shall be deemed deleted and replaced with:
Tenant shall operate the Leased Properties under the brand
name which Tenant and its Affiliated Persons operate most of
the other hotels owned, leased or otherwise operated by them
which are similar to the Leased Properties, which brand name,
as of the date of the Consent, is "AmeriSuites". Tenant shall
not change the brand of the Hotels without Landlord's prior
written consent, which consent shall not be unreasonably
withheld, delayed or conditioned, it being agreed that, it
shall be reasonable for Landlord to withhold its consent to a
brand name that is generally associated with lower prices than
the brand name under which the Hotels are then currently being
operated.
(l) There is inserted in the Lease a new Section 21.11 as follows:
21.11 Negative Covenants. Except as expressly permitted in
this Agreement, Tenant shall not, without the prior written
consent of the Landlord:
a) purchase or lease any real property other than the Leased
Property, have any assets or liabilities other than assets or
liabilities derived from or related to the Leased Property or
engage in any business or undertake any activity other than as
permitted herein, including, without limitation, the
operation, as a lessee or otherwise, of any property other
than the Leased Property;
b) have any subsidiaries;
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c) amend, supplement or otherwise modify its governing
instruments with respect to (i) bankruptcy remoteness, (ii)
being a Single Purpose Entity or (iii) the Independent
Director or remove or otherwise cease to have an Independent
Director as a director;
d) fail to do all things necessary to keep in full force and
effect its valid existence as a corporation and as a Single
Purpose Entity and to qualify to do business in each
jurisdiction in which such qualification is necessary to the
conduct of its business or to protect the validity and
enforceability of the Amended Lease and the Incidental
Documents, as the same may be amended or modified from time to
time;
e) fail to keep proper books of account and records in which
full, true and correct entries in accordance with GAAP shall
be made of all dealings and transactions in relation to its
business and activities;
f) fail to generally pay its debts as they become due;
g) take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts
set forth above.
(m) Landlord hereby approves of Ernst & Young as Assignee's firm of
independent certified public accountants.
(n) The definition of "Accounting Period" set forth in the Lease is
hereby deleted in its entirety and the following inserted in its place:
"ACCOUNTING PERIOD" shall mean each calendar month.
(o) The definition of "Base Year" set forth in the Lease is hereby
deleted in its entirety and the following inserted in its place:
"BASE YEAR" shall mean (i) with respect to each Property
described in Exhibit A-1 through A-14 other than any Property
located in Arizona, the 1998 Fiscal Year; (ii) with respect to
each Property described in Exhibit A-1 through A-14 and
located in Arizona, the twelve (12) Accounting Periods
commencing July 13, 1998; (iii) with respect to each Property
described in Exhibit A-15 through A-20, the 2000 Fiscal Year,
and (iv) with respect to each Property described in Exhibit
A-21 through A-24, the twelve (12) Accounting Periods
commencing July 1, 2000.
(o) The definition of "Fiscal Year" set forth in the Lease is hereby
deleted in its entirety and the following inserted in its place:
"FISCAL YEAR" shall mean each calendar year.
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(p) The definition of "Minimum Rent" set forth in the Lease is hereby
deleted in its entirety and the following inserted in its place:
"MINIMUM RENT" shall mean an amount equal to Two Million One
Hundred Thirty One Thousand Two Hundred Sixty Seven Dollars
($2,131,267) per Accounting Period.
(q) Exhibit C to the Lease is hereby deleted and Exhibit B to this
Agreement inserted in its place.
9. TRADE AREA RESTRICTIONS. Assignee acknowledges that currently there
are violations of Section 22.11 of the Lease with respect to the Properties in
Gwinnet, Georgia; Overland Park, Kansas; Charlotte, North Carolina; Orlando,
Florida; Las Colinas, Texas; Alpharetta, Georgia; Austin, Texas; and
Albuquerque, New Mexico. Landlord agrees to forbear from exercising its rights
and remedies in connection with such violations subject to the following terms
and conditions:
(a) On or before the earlier of March 31, 2001 and the date that is
nine (9) months after the date hereof, Assignee shall cause the now existing
AmeriSuites hotel in the trade area of the Property in Gwinnet, Georgia to be
re-flagged as a "Wellesley Inn" and at all times thereafter cause such hotel to
be operated in a manner and fashion which is not in violation of Section 22.11
of the Lease. Provided Assignee so timely re-flags such Property and causes the
same to be so operated, the violation of Section 22.11 with respect to such
Property resulting from such now existing AmeriSuites hotel shall be deemed
cured. If such property is not timely re-flagged as herein required, (i) the
same shall constitute an Event of Default under the Lease and (ii) the
Landlord's obligation to forbear from exercising its rights and remedies in
connection with such violations Section 22.11 pertaining to the Property in
Gwinnet, Georgia shall terminate.
(b) Landlord waives the violations of Section 22.11 of the Lease
resulting from the now existing AmeriSuite hotels in the designated areas for
the Properties located in: ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
Austin Texas; and Orlando, Florida; provided, however, such waiver shall not
alter or otherwise effect the Amended Lease which shall continue in full force
and effect with respect to any other violations of its terms; and
(c) If after December 31, 2001 there shall be (x) an Event of Default
(as defined in the applicable Exchange Options) or (y) other event or
circumstances which with the passage of time, the giving of notice or both would
constitute such an Event of Default (other than the failure to achieve
Completion (as defined in the applicable Exchange Option), in either case, on or
before the date initially specified as the Outside Date under the applicable
Exchange Options provided that Completion is achieved by the date to which
Outside Date may be extended pursuant to the terms of the applicable Exchange
Options) under any of the Exchange Options then the following shall apply:
(i) Landlord shall have the option (each, a "PUT OPTION") at
its election, in addition such rights and remedies as may be available
to it under the Amended Lease, the Exchange Options, at law, in equity
or otherwise, to require that Assignor, Assignee, Prime and ShoLodge
purchase, and each of them (jointly,
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severally and collectively, the "PURCHASER") agrees to purchase the
Property or Properties (each, A "SALE PROPERTY") which were to be
disposed of by Landlord pursuant to the terms of the applicable
Exchange Option (assuming Landlord had exercised its option thereunder)
without recourse or representation on the part of Landlord except for
those, if any, contained in the applicable Exchange Option.
(ii) Landlord shall exercise such Put Option no later than the
later of (x) March 31, 2002 and (y) the date that is ninety (90) days
after Landlord has notice from Assignee that such Event of Default or
other event or circumstance has occurred. Such Put Option shall be
exercisable by Landlord if Assignee has given such notice to Landlord
regardless of any dispute by Assignor or ShoLodge regarding whether
such Event of Default or other event or circumstances has occurred.
(iii) Notwithstanding the foregoing, neither Assignor nor
ShoLodge shall be obligated to purchase the Prime Exchange Property.
(iv) The consummation of such sale of a Sale Property shall
take place on or before the day that is thirty (30) days after the day
on which notice is given by Landlord to Assignee and Assignor that
Landlord has elected to exercise the applicable Put Option at 10:00
a.m. at the offices of ▇▇▇▇▇▇▇▇ & Worcester LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
(v) The purchase price for each Sale Property shall be as
specified in Exhibit C hereto which amount shall be paid by wire
transfer.
(vi) Simultaneously with such sale, the Amended Lease shall be
appropriately amended to eliminate from the Amended Lease the Sale
Property (and the rent attributed thereto) being disposed of by the
Landlord and to pro-rate the rents and other charges due under the
Amended Lease as of the date of the closing of such sale with respect
to such Sale Property.
(vii) In addition, simultaneously with such sale, (A) Assignee
and Purchaser shall make appropriate adjustment on account of amounts
contributed to, and expended from, the FF&E Reserve with respect to the
applicable Sale Property (and the references to such Sale Property
shall be deleted from the FF&E Pledge), (B) Landlord shall return to
Assignee a portion of the Retained Funds equal to the annual Minimum
Rent allocable to the Sale Property as set forth in Exhibit C hereto,
(C) Landlord shall release from the lien of the Security Agreement the
tangible personal property of Assignee located at the Sale Property and
(D) Landlord shall execute and deliver appropriate Uniform Commercial
Code terminations.
(viii) Upon the consummation of the sale of the Sale Property
or if Landlord fails to timely exercise a Put Option, Landlord shall be
deemed to have waived (x) the applicable violation(s) of Section 22.11
of the Lease and (y) all Events of Default and Defaults resulting from
violations or defaults under the Exchange Option Agreement(s).
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(ix) If the sale of a Sale Property is not consummated as
herein required, (A) the same shall constitute an Event of Default
under the Lease, (B) the Landlord's obligation to forbear from
exercising its rights and remedies in connection with such violations
Section 22.11 pertaining to such Sale Property shall terminate, and (C)
such violation shall also constitute an Event of Default under the
Lease.
(x) The terms of Section 11.7 of the Exchange Options are
incorporated herein by this reference and shall apply with equal force
to the Put Options, mutatis mutandis.
10. THE GUARANTY AND THE GUARANTY DEPOSIT. (a) Except as expressly
provided in Section 10(b) below, upon the expiration of the Amended Lease and
the payment and performance of each and every obligation of the Tenant to
Landlord and HPT under the Lease and Incidental Documents, provided no Event of
Default shall have occurred and be continuing, any unapplied balance of the
Guaranty Deposit shall be paid to Prime together with any accrued and unpaid
interest with respect thereto. In the event HPT and Landlord shall fail to so
pay any unapplied balance of the Guaranty Deposit and accrued interest to Prime
on the date due, HPT and Landlord shall thereafter pay Prime interest thereon at
the Overdue Rate until paid. Landlord shall credit accrued interest on the
Guaranty Deposit against the monthly Minimum Rent. Under no circumstance shall
ShoLodge or any of its Affiliated Persons be entitled to any of the Guaranty
Deposit or interest thereon.
(b) Provided that no (i) monetary Default, (ii) Default as to which
Notice thereof has been given to Tenant or (iii) Event of Default shall have
occurred and be continuing under the Amended Lease, (iv) Cash Flow (as defined
below) for a period of twelve (12) full consecutive Accounting Periods equals or
exceeds Thirty-Four Million Fifteen Thousand Dollars ($34,015,000) with respect
to such period, and (v) HPT and Landlord shall receive a schedule evidencing the
foregoing, in form and substance reasonably satisfactory to HPT and Landlord
prepared by a, so-called, "Big-Five" accounting firm or such other certified
public accountants as are approved by HPT and Landlord (such approval not to be
unreasonably withheld, delayed or conditioned), the Guaranty shall terminate ten
(10) Business Days after delivery to HPT and Landlord of the financial
statements described in clause (v) preceding, and HPT and Landlord shall, within
ten (10) Business Days after the written request of Prime, pay any unapplied
balance of the Guaranty Deposit to Prime, together with any accrued and unpaid
interest thereon.
(c) As used herein, "CASH FLOW" shall mean the net income (or loss) of
Tenant in connection with the operation of the Hotels before income taxes,
calculated in accordance with GAAP, plus (a) all extraordinary expense items,
(b) depreciation and amortization, (c) interest expense on Indebtedness
permitted under the Lease, (d) base management fees, incentive management fees,
trade name fees, franchise fees, royalty fees and central marketing fees paid to
the Manager to the extent subordinate to payment of rent pursuant to the Lease
from and after the occurrence of an Event of Default minus (e) required
contributions to the FF&E Reserve and (f) all extraordinary income items.
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(d) Landlord and HPT hereby confirm that their recourse against
ShoLodge under the Guaranty shall be limited to the Guaranty Deposit and
interest thereon. ShoLodge hereby ratifies and confirms it obligations under the
Guaranty, and acknowledges and agrees that its obligations thereunder will not
be affected or impaired by: (i) the existence or invalidity of any other
guarantee or security or by any waiver, amendment, release or modification
thereof; (ii) any assignment or transfer in whole or in part of any of the
Guaranteed Obligations (as defined in the Guaranty) without notice to the
ShoLodge; (iii) waiver by HPT or Landlord or any holder of any of the Guaranteed
Obligations or by the holders of all of the Guaranteed Obligations of the
performance or observance by the Tenant or any other guarantor of any of the
agreements, covenants, terms or conditions contained in the Guaranteed
Obligations or the Transaction Documents (as defined in the Guaranty); (iv) any
indulgence in or the extension of the time for payment by the Tenant or any
other guarantor of any amounts payable under or in connection with the
Guaranteed Obligations or the Transaction Documents or any other instrument or
agreement relating to the Guaranteed Obligations or of the time for performance
by the Tenant or any other guarantor of any other obligations under or arising
out of any of the foregoing or the extension or renewal thereof; (v) the
modification or amendment (whether material or otherwise) of any duty, agreement
or obligation of the Tenant or any other guarantor set forth in any of the
foregoing including, without limitations, the modifications contemplated by this
Agreement, the Options or in any other document executed in connection herewith
or the Amended Lease; (vi) the voluntary or involuntary sale or other
disposition of all or substantially all the assets of the Tenant or any other
guarantor or insolvency, bankruptcy, or other similar proceedings affecting the
Tenant or any other guarantor or any assets of the Tenant or any such other
guarantor; or (vii) the release or discharge of the Tenant or any such other
guarantor from the performance or observance of any agreement, covenant, term or
condition contained in any of the foregoing without the consent of the holders
of the Guaranteed Obligations by operation of law. Landlord, HPT, Assignee and
Prime acknowledge and agree that under no circumstance shall ShoLodge or
Assignor ever be obligated to contribute additional funds hereunder or under the
Guaranty to be added to or to replenish the Guaranty Deposit, including, without
limitation, upon any use of the Guaranty Deposit, any portion thereof or any
interest thereon to cure any default under the Amended Lease or any failure by
HPT, Landlord or any successor holder of the Guaranty Deposit to deliver the
Guaranty Deposit or any interest thereon as required herein. Nothing contained
in the foregoing shall diminish or reduce Sholodge's obligations under the
Supplemental Guaranty.
(e) Sholodge, Landlord and HPT shall not amend or modify the Guaranty
without Prime's prior written consent; provided that the terms thereof as
modified hereby may be ratified and confirmed from time to time. Sholodge hereby
agreeing to execute and deliver such confirmations of the Guaranty as Landlord
may reasonably require in connection with the closings under the Exchange
Options and/or the Put Options. Further, Sholodge shall execute and deliver such
amendments to the Guaranty as Prime and Landlord shall request provided that no
such amendment modifies or diminishes the non-recourse nature of the Guaranty as
set forth in Section 10(d) above.
(f) If, in connection with the assignment in whole or in part of the
Amended Lease, HPT and Landlord or any successor holder of the Guaranty Deposit
shall transfer the Guaranty Deposit to a someone having a Net Worth of not less
than ten (10) times the unapplied balance
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thereof, Landlord and HPT or any such successor shall be relieved of all of
their obligations with respect to the Guaranty Deposit and interest thereon. If
such successor shall not satisfy the aforesaid Net Worth requirement, Landlord
and HPT shall, in a guaranty in form and substance reasonably satisfactory to
Prime, guaranty the payment of the Guaranty Deposit and interest thereon in
accordance with this Agreement. At the time of any such assignment, Landlord and
HPT shall cause such successor to acknowledge in writing to ShoLodge and
Assignor such successor's agreement to the continued applicability of the
provisions of Section 10(d).
(g) Provided that no Event of Default shall have occurred and be
continuing, in lieu of the interest otherwise due under the Guaranty during the
Term, HPT shall credit the Tenant with interest on any unapplied balance of the
Guaranty Deposit at a rate of 11.11% per annum. Such interest shall be credited
against the rent and other charges due under the Lease in arrears and pro rated
with respect to any partial month.
11. ADDITIONAL DEPOSIT. (a) Simultaneously with the execution and
delivery hereof, Prime has (i) deposited with Landlord the sum (the "ADDITIONAL
DEPOSIT") of Two Million Five Hundred Thousand Dollars ($2,500,000) as security
the payment and performance of each and every obligation of the Tenant to
Landlord under the Amended Lease and the Incidental Documents, whether now
existing or hereafter arising, and including, without limitation, the payment of
the full amount of the Rent payable under the Amended Lease and (ii) contributed
to Assignee the right to receive any interest due on the Additional Deposit
during the Term pursuant to the terms hereof. Landlord shall have no obligation
to hold the Additional Deposit in a segregated account and may commingle the
same with its general funds. Provided that no Event of Default shall have
occurred and be continuing, Landlord shall credit the Tenant with interest on
any unapplied balance of the Additional Deposit at a rate of 9% per annum. Such
interest shall be credited against the rent and other charges due under the
Amended Lease in arrears and pro rated with respect to any partial month. Upon
the earlier of the expiration of the Amended Lease and the payment and
performance of each and every obligation of the Tenant to Landlord and HPT under
the Lease and Incidental Documents and the termination of Prime's obligation to
keep the Additional Deposit with Landlord pursuant to Section 11(b) below,
provided no Event of Default shall have occurred and be continuing, Landlord
shall refund any unapplied balance of the Additional Deposit, together with any
accrued and unpaid (or uncredited) interest with respect thereto, to Prime. In
the event Landlord shall fail to refund any unapplied balance of the Additional
Deposit and accrued interest to Prime on the date due, Landlord shall thereafter
pay Prime interest thereon at the Overdue Rate until paid.
(b) Provided that no (i) monetary Default, (ii) Default as to which
Notice thereof has been given to Tenant or (iii) Event of Default shall have
occurred and be continuing under the Amended Lease, (iv) Cash Flow for a period
of twelve (12) full consecutive Accounting Periods equals or exceeds Thirty-Four
Million Fifteen Thousand Dollars ($34,015,000) with respect to such period and
(v) Landlord shall receive a schedule evidencing the foregoing, in form and
substance reasonably satisfactory to Landlord prepared by a, so-called,
"Big-Five" accounting firm or such other certified public accountants as are
approved by Landlord (such approval not to be unreasonably withheld, delayed or
conditioned), the obligation of Prime to keep the
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Additional Deposit with Landlord shall terminate ten (10) Business Days after
delivery to Landlord of the financial statements described in clause (v)
preceding, and Landlord shall, within ten (10) Business Days after the written
request of Prime, pay any unapplied balance of the Additional Deposit to Prime,
together with any accrued and unpaid interest thereon.
(c) If, in connection with the assignment in whole or in part of the
Amended Lease, Landlord or any successor holder of the Additional Deposit shall
transfer the Additional Deposit to someone having a Net Worth of not less than
ten (10) times the unapplied balance thereof, Landlord or any such successor
shall be relieved of all of their obligations with respect to the Additional
Deposit and interest thereon. If such successor shall not satisfy the aforesaid
Net Worth requirement, Landlord shall, in a guaranty in form and substance
reasonably satisfactory to Prime, guaranty the payment of the Additional Deposit
and interest thereon in accordance with this Agreement.
12. MISCELLANEOUS.
(a) EXPENSES. Assignor and Assignee shall pay their and Landlord's
expenses incident to the negotiation, preparation and carrying out of this
Agreement, including, without limitation, all reasonable fees and expenses of
Landlord's counsel (collectively, "LANDLORD'S EXPENSES"). Assignor and Assignee
shall also pay the cost of all recording fees, transfer fees and other like
costs and expenses incident to this Agreement and the assignment of the Lease.
As between Assignor and Assignee, Landlord's Expenses shall be paid as they have
or may agree.
(b) BROKERAGE. Assignor and Assignee agree that Landlord is not
responsible for the payment of any commission or fees in connection with this
Agreement and they each jointly and severally agree to indemnify and hold
harmless Landlord from and against any claims, liabilities, losses or expenses,
including reasonable attorneys" fees, incurred by Landlord in connection with
any claims for commissions or fees by any broker or agent in connection with
this Agreement.
(c) 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 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. No party or its employees shall trade in the
securities of the parties hereto or their affiliates until a public announcement
of the transactions contemplated by this Agreement has been made.
(d) 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 automatically be
extended to the first Business Day following such date.
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13. APPLICABLE LAW, ETC. This Agreement shall be interpreted,
construed, applied and enforced in accordance with the laws of The Commonwealth
of Massachusetts applicable to contracts between residents of Massachusetts
which are to be performed entirely within Massachusetts, regardless of (i) where
this Agreement is executed or delivered; or (ii) where any payment or other
performance required by this Agreement is made or required to be made; or (iii)
where any breach of any provision of this Agreement occurs, or any cause of
action otherwise accrues; or (iv) where any action or other proceeding is
instituted or pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or domestication of any
party; or (vi) whether the laws of the forum jurisdiction otherwise would apply
the laws of a jurisdiction other than The Commonwealth of Massachusetts; 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 may be brought and prosecuted in such court or courts located in
The Commonwealth of Massachusetts as is provided by law; and the parties consent
to the jurisdiction of said court or courts located in The Commonwealth of
Massachusetts and to service of process by registered mail, return receipt
requested, or by any other manner provided by law.
14. 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 others, 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.
By a separate instrument of even date herewith, Landlord has released Assignor
with respect to its obligations arising after the date hereof under the Amended
Lease to the extent assumed by Assignee. Accordingly, notwithstanding anything
contained to the contrary, the consent of Assignor shall not be required for any
further modifications of the Lease.
15. 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.
16. 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
herein and therein 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 law.
17. ENTIRE CONTRACT. 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.
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18. 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.
19. 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.
20. NONLIABILITY OF TRUSTEES, ETC. THE DECLARATION OF TRUST
ESTABLISHING LANDLORD, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO
(THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HPT SUITE PROPERTIES
TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF LANDLORD SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY
OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, LANDLORD. ALL PERSONS
DEALING WITH LANDLORD, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF LANDLORD FOR
THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
21. AMENDMENT. Except as amended hereby, the Lease remains unmodified.
Landlord and Assignee hereof ratify and confirm the terms of the Lease.
22. DEFINITIONS. Each capitalized term used but not defined in this
Agreement shall have the meaning ascribed thereto in the Amended Lease.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
under seal as of the date above first written.
HPT SUITE PROPERTIES TRUST
By:______________________________
Its (Vice) President
SUITE TENANT, INC.
By:______________________________
Its (Vice) President
▇▇▇▇ ROCK HOLDING, CORP.
By:___________________________
Name:
Title:
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PRIME HOSPITALITY CORP. hereby acknowledges it agrees to be bound by
the provisions of Section 22.11 of the Lease (as defined above), as amended by
the foregoing and the terms of Section 9 and Section 10(d) above.
PRIME HOSPITALITY CORP.
By:___________________________
Name:
Title:
Dated: July 9, 2000
SHOLODGE, INC. hereby agrees to be bound by the terms of Section 9
above.
SHOLODGE, INC.
By:___________________________
Name:
Title:
Dated: July 9, 2000
HOSPITALITY PROPERTIES TRUST hereby (I)consents to the assignment of
the Guaranty Deposit to Prime and the contribution of the right to receive
interest with respect thereto pursuant to the terms of this Agreement during the
Term to Assignee, but such consent does not constitute consent to any further
assignment, mortgage, pledge, hypothecation, encumbrance or other transfer of
the Guaranty Deposit, which shall, in each case, require the further consent of
Hospitality Properties Trust and (ii) agrees to be bound by the provisions of
Section 10 above.
HOSPITALITY PROPERTIES TRUST
By:______________________________
Name:
Title:
Dated: July 9, 2000
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EXHIBIT A
The Lease
[See attached copy.]
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EXHIBIT B
ALLOCATION OF MINIMUM RENT
LOCATION STATE ALLOCABLE RENT PER ACCOUNTING
-------- ----- PERIOD
----------------------------
Tampa FL 35,932
San Antonio Riverwalk TX 117,765
Fort ▇▇▇▇▇ IN 80,773
Albuquerque NM 95,984
El Paso TX 76,240
Hendersonville TN 62,597
Smyrna/Cumberland GA 79,988
Gwinett/Duluth GA 94,419
Columbus OH 111,794
College Part (Atlanta AP) GA 85,973
Dallas Galleria TX 93,247
Austin TX 76,926
Tucson AZ 71,129
Tempe AZ 83,900
-------
Alpharetta GA 96,133
Las Colinas/Irving TX 102,667
Overland Park KS 103,600
Charlotte NC 95,200
Colorado Springs CO 102,667
Louddon Tech Ctr/Sterling VA 106,400
-------
Pine ▇▇▇▇▇ Shores NC 79,333
Indianapolis IN 88,200
Kansas City MO 91,467
Orlando FL 98,933
-------
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EXHIBIT C
SALE PROPERTY PURCHASE PRICES
Allocable Annual
Property Purchase Price Minimum Rent
Alpharetta, GA $10,815,000 $ 1,153,600
Albuquerque, NM 12,093,955 1,151,805
Las Colinas/Irving, TX 11,550,000 1,232,000