Exhibit 10.11
AGREEMENT TO LEASE
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THIS AGREEMENT TO LEASE (this "Agreement") is entered into as of the 26th
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day of February, 1996, by and between HOSPITAlITY PROPERTIES TRUST, a Maryland
real estate investment trust ("HPT"), and HMH HPT RESIDENCE INN, INC., a
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Delaware corporation ("Tenant").
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W I T N E S S E T H:
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WHEREAS, pursuant to a Purchase, Sale and Exchange Agreement, dated as of
the date hereof (the "Purchase Agreement"), by and between HPT and HMH
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Properties, Inc., HPT, either directly or through a wholly owned subsidiary, is
planning to acquire those certain properties, as more particularly described in
Exhibits A-1 through A-18, attached hereto and made a part hereof; and
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WHEREAS, subject to and upon the terms and conditions set forth in this
Agreement, pursuant to a lease Agreement in the form attached hereto as Exhibit
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B (the "Lease"), HPT has agreed to lease to Tenant, and Tenant has agreed to
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lease (or, in the case of a Ground Lease Property, as hereinafter defined,
sublease) from HPT, all of the Properties (this and other capitalized terms used
and not otherwise defined herein having the meanings ascribed to such terms in
the Purchase Agreement);
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. Agreement to Lease. Subject to and upon the terms and conditions
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hereinafter set forth, on the date on which HPT acquires fee simple title to
each of the Fee Properties and the ground tenant's interest with respect to the
Ground Lease Properties, HPT and Tenant shall each execute and deliver a lease
with respect to each of the Properties and such date shall be the Commencement
Date under each such lease.
2. Base Rent. The annual Base Rent payable under each lease shall be an
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amount equal to ten percent (10%) of the Allocable Purchase Price of the
Property demised thereunder.
3. Representations of Tenant, Etc. As an inducement to HPT to enter into
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this Agreement, Tenant hereby represents and warrants to HPT that, as of the
date hereof and throughout the term of the Leases:
(a) Status and Authority of Tenant, Etc. Tenant is a corporation duly
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organized and validly existing under the laws of its state of incorporation and
has all requisite power and
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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 the leases and to transact the business in
which it is engaged or presently proposes to engage. Tenant is duly qualified
in each jurisdiction in which the nature of the business conducted or to be
conducted by it requires such qualification.
(b) Corporate Action of Tenant, Etc. Tenant has taken all necessary action
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(corporate or other) under its respective charter documents to authorize the
execution, delivery and performance of this Agreement and the leases and each
such instrument constitutes, or will upon execution constitute, the valid and
binding obligation and agreement of Tenant 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 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 Other Agreements, Etc. Neither the execution and
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delivery of this Agreement or the Leases by Tenant, nor 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 Tenant pursuant to the terms of any other indenture, mortgage, deed of
trust, note, evidence of indebtedness, agreement or other instrument to which
Tenant may be a party or by which Tenant 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 order or other public regulation of any
governmental commission, bureau or administrative agency.
(d) Judgments; Litigation. Except as previously disclosed to HPT in
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writing, there are no judgments presently outstanding and unsatisfied against
Tenant or any of its properties, and neither Tenant 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 adversely affect Tenant, and no
such material litigation or proceeding is, to the knowledge of Tenant,
threatened against Tenant, and no investigation looking toward such a proceeding
has begun or is contemplated.
(e) Disclosure. To the knowledge of Tenant, neither this Agreement nor any
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other document, certificate or statement furnished to HPT by or on behalf of
Tenant, or any Affiliated
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Person as to Tenant, 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 Tenant, there is no fact or condition which
materially and adversely affects the business, operations, affairs, properties
or condition of Tenant which has not been set forth in this Agreement or in the
other documents, certificates or statements furnished to HPT in connection with
the transactions contemplated hereby.
4. Representations of HPT. As an inducement to Tenant to enter into this
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Agreement, HPT hereby represents to Tenant that, as of the date hereof and
throughout the Term of the lease, 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, subject to approval of its Board
of Trustees, to enter into this and the leases and to consummate the
transactions contemplated hereby and thereby.
5. Additional Tenant Obligations. On or before the Commencement Date,
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Tenant shall cause each of the following to be delivered to HPT (the obligation
of HPT to enter into the lease being subject to such delivery):
(a) A pledge and security agreement with respect to all tangible personal
property used in connection with the operation of the Properties, including,
without limitation, all licenses and permits, such pledge and security agreement
to create a first lien and security interest in such property and to be
otherwise in form and substance reasonably acceptable to HPT;
(b) Such financing statements as HPT may reasonably require to perfect the
interests and liens granted pursuant to the pledge and security agreement
described in paragraph (a) above; and
(c) Any other Incidental Documents required by the Lease.
6. Condition Precedent. The obligations of the parties hereunder shall be
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subject to the consummation of the transactions contemplated by the Purchase
Agreement.
7. Notices. All notices required or desired to be given hereunder shall
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be given in the manner provided in Section 22.10 of the Lease.
8. Assignment. Tenant shall not assign or transfer, directly or
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indirectly, its rights under this Agreement without the prior written consent of
HPT, which consent may be given or withheld by HPT in HPT's sole discretion.
HPT shall not assign or transfer, directly or indirectly, its rights under this
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Agreement other than to a wholly owned subsidiary of HPT without the prior
written consent of Tenant, which consent may be given or withheld by Tenant in
Tenant's sole discretion.
9. Default.
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(a) Default by Tenant. If Tenant shall have made any representation or
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warranty herein which shall be untrue or misleading in any material respect, or
if Tenant shall fail to perform any of the covenants and agreements contained
herein to be performed by Tenant and such failure continues for a period of ten
(10) days after notice thereof from HPT, HPT may terminate this Agreement and/or
pursue any and all remedies available to HPT at law or in equity, including, but
not limited to, a suit for specific performance or other equitable relief.
(b) Default by HPT. If HPT shall have made any representation or warranty
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herein which shall be untrue or misleading in any material respect, or if HPT
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 Tenant, Tenant may terminate this Agreement and/or
pursuant any and all remedies available to Tenant at law or in equity,
including, but not limited to, a suit for specific performance or other
equitable relief.
10. Miscellaneous.
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(a) Expenses. HPT and Tenant shall each pay their own professional
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expenses incident to the negotiation, preparation and carrying out of this
Agreement, including, without limitation, all fees and expenses of their
respective counsel. HPT and Tenant shall share equally the cost of all recording
fees, transfer fees and other like costs and expenses.
(b) Publicity. The parties agree that no party shall, with respect to this
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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. No party or its employees shall trade in the securities of any parent or
Affiliated Person of HPT or Tenant until a public announcement of the
transactions contemplated by this Agreement has been made.
(c) Performance on Business Days. In the event the date on which
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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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11. Applicable Law, Etc. This Agreement shall be interpreted, construed,
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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; 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 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 may 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.
12. Modification of Agreement. No modification or waiver of any provision
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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 other, 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.
13. Waiver of Rights. Neither any failure nor any delay on the part of
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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.
14. Severability. In case any one or more of the provisions contained in
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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 laws.
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15. Entire Contract. This Agreement, including all annexes and exhibits
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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.
16. Counterparts; Headings. This Agreement may be executed in two or more
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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.
17. Binding Effect. All the terms and provisions of this Agreement shall
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be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
18. Nonliability of Trustees, Etc. THE DECLARATION OF TRUST ESTABLISHING
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HPT, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"),
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IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF
MARYLAND, PROVIDES THAT THE NAME "HOSPITALITY 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 HPT
SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, HPT. ALL PERSONS DEALING WITH HPT, IN ANY WAY,
SHALL LOOK ONLY TO THE ASSETS OF HPT FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
19. Nonliability of Officers, Etc. NO TRUSTEE, OFFICER, SHAREHOLDER,
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EMPLOYEE OR AGENT OF TENANT SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, TENANT. ALL PERSONS DEALING
WITH TENANT, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF TENANT FOR THE PAYMENT
OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, HPT and Tenant have executed this Agreement under seal
as of the date above first written.
HOSPITALITY PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Treasurer
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HMH HPT RESIDENCE INN, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
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Its (Vice) President
EXHIBITS A-1 THROUGH A-18
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Description of the Leased Properties
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[See attached copies.]
EXHIBIT B
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Form of Lease
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[See attached copy.]