EXHIBIT 10.2
LOAN AFFIRMATION AND MODIFICATION AGREEMENT
THIS LOAN AFFIRMATION AND MODIFICATION AGREEMENT
(this "Agreement") is made and entered into as of the 9th day of January,
2002 (the "Execution Date"), and effective as of December 31, 2001 (the
"Effective Date"), by and among EQI FINANCING PARTNERSHIP II, L.P., a
Tennessee limited partnership ("EQI II"), EQI/WV FINANCING PARTNERSHIP,
L.P., a Tennessee limited partnership ("EQI/WV"; together with EQI II, "EQI
II Borrower"), EQI FINANCING PARTNERSHIP V, L.P., a Tennessee limited
partnership ("EQI V Borrower"; together with the EQI II Borrower, the
"Borrower"), ENN LEASING COMPANY II, L.L.C., a Delaware limited liability
company ("EQI II New Tenant"), ENN LEASING COMPANY V, L.L.C., a Delaware
limited liability company ("EQI V New Tenant"; together with EQI II New
Tenant, "New Tenant"), EQUITY INNS PARTNERSHIP, L.P., a Tennessee limited
partnership ("EIP"), EQUITY INNS, INC., a Tennessee corporation ("EII";
together with EIP, the "EQI II Guarantors"), and EQUITY INNS TRUST, a
Maryland real estate investment trust ("EIT"; together with EII and EIP,
the "EQI V Guarantors" or the "Guarantor"), NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series ▇▇▇▇-▇▇, ▇▇▇▇▇▇▇ BANK NATIONAL ASSOCIATION, as trustee for the
registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2000-C1, and LASALLE BANK NATIONAL
ASSOCIATION, as trustee for the registered holders of GMAC Commercial
Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
2000-C3 (collectively, the "Lender").
Recitals
A. GMAC Commercial Mortgage Corporation, a California corporation
("Original Lender"), pursuant to the EQI II Loan Documents (as hereinafter
defined) made a loan to EQI II Borrower in the original principal amount of
$97,020,000.00 (the "EQI II Loan"). The EQI II Loan is evidenced by two (2)
separate Promissory Notes, in the maximum aggregate amount equal to the EQI
II Loan, each dated as of June 16, 1999 (collectively, as amended, the "EQI
II Note") and is secured, inter alia, by the mortgages or deeds of trust
referenced on Schedule 1-A attached hereto (collectively, as amended, the
"EQI II Mortgages"), each executed by EQI II Borrower for the benefit of
the Original Lender, each dated as of June 16, 1999 and recorded in the
appropriate real property records for the nineteen (19) separate hotel
properties (individually, an "EQI II Property", and collectively, the "EQI
II Properties") referenced on Schedule 1-A, (ii) nineteen (19) separate
assignment of leases, rents and profits (collectively, as amended, the "EQI
II Assignments"), one for each of the nineteen (19) separate Properties,
and (iii) a certain Lockbox Account Agreement (as amended, the "EQI II
Lockbox Agreement") dated as of June 16, 1999 among EQI II Borrower,
Original Lender and PNC Bank, N.A. The EQI II Loan is governed, inter alia,
by a Loan Agreement dated as of June 16, 1999 between EQI II Borrower and
Original
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Lender (as amended, the "EQI II Loan Agreement"). The EQI II Loan is also
governed, secured and guaranteed pursuant to those other security
agreements, contracts, assignments, indemnification agreements, guarantees,
and other documents and instruments executed by EQI II Borrower or for the
benefit of Lender and delivered in connection with the Loan, as further
described and defined in the EQI II Loan Agreement and the EQI II Mortgage
(collectively, the EQI II Note, the EQI II Mortgages, the EQI II
Assignments, the EQI II Lockbox Agreement, the EQI II Loan Agreement, the
EQI II First Loan Modification Agreement (as defined herein) and such other
agreements, contracts, assignments, indemnification agreements, guarantees
and other instruments being hereinafter referred to as the "EQI II Loan
Documents"). Pursuant to that certain Loan Modification and Affirmation
Agreement dated effective as of January 1, 2001 (the "EQI II First Loan
Modification"), the other EQI II Loan Documents were modified as more
specifically described therein in connection with a restructure of the
operating leases (the "EQI II First Leasing Restructure") relating to the
EQI II Unaffected Properties (as defined herein).
B. Original Lender, pursuant to the EQI V Loan Documents (as
hereinafter defined) made a loan to EQI V Borrower in the original
principal amount of $36,000,000.00 (the "EQI V Loan"; together with the EQI
II Loan, the "Loan"). The EQI V Loan is evidenced by a Promissory Note in
the maximum aggregate amount equal to the EQI V Loan, dated as of October
20, 2000 (as amended, the "EQI V Note"; together with the EQI II Note, the
"Note") and is secured, inter alia, by the mortgages or deeds of trust
referenced on Schedule 1-B attached hereto (collectively, as amended, the
"EQI V Mortgages"; together with the EQI II Mortgages, the "Mortgages"),
each executed by EQI V Borrower for the benefit of the Original Lender,
each dated as of October 20, 2000 and recorded in the appropriate real
property records for the eight (8) separate hotel properties (individually,
an "EQI V Property", and collectively, the "EQI V Properties"; together
with the EQI II Properties, the "Properties") referenced on Schedule 1-B,
(ii) eight (8) separate assignment of leases, rents and profits
(collectively, as amended, the "EQI V Assignments"; together with the EQI
II Assignments, the "Assignments"), one for each of the eight (8) separate
Properties, and (iii) a certain Cash Management Account Agreement (as
amended, the "EQI V Lockbox Agreement"; together with the EQI II Loan
Agreement, the "Lockbox Agreement") dated as of October 20, 2000 among EQI
V Borrower, Original Lender and National Bank of Commerce. The EQI V Loan
is governed, inter alia, by a Loan Agreement dated as of October 20, 2000
between EQI V Borrower and Original Lender (as amended, the "EQI V Loan
Agreement"; together with the EQI II Loan Agreement, the "Loan Agreement").
The EQI V Loan is also governed, secured and guaranteed pursuant to those
other security agreements, contracts, assignments, indemnification
agreements, guarantees, and other documents and instruments executed by EQI
V Borrower or for the benefit of Lender and delivered in connection with
the Loan, as further described and defined in the EQI V Loan Agreement and
the EQI V Mortgage (collectively, the EQI V Note, the EQI V Mortgages, the
EQI V Assignments, the EQI V Lockbox Agreement, the EQI V Loan Agreement,
the EQI V First Loan Modification (as defined herein), and such other
agreements, contracts, assignments, indemnification agreements, guarantees
and other instruments being hereinafter referred to as the "EQI V Loan
Documents"; together with the EQI II Loan Documents, the "Loan Documents").
Pursuant to that certain consent and waiver letter agreement dated
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December 29, 2000 (the "EQI V First Loan Modification"), EQI V and EQI V
New Tenant, and Lender made certain agreements as more specifically
described therein in connection with a restructure of the operating leases
(the "EQI V First Leasing Restructure") relating to certain of the EQI V
Unaffected Properties (as defined herein).
C. Pursuant to the EQI II Loan Documents, EQI II Borrower has granted
Original Lender a security interest in the operating leases for the EQI II
Properties (the "EQI II Existing Operating Leases"), including, without
limitation, that certain Consolidated, Amended and Restated Lease Agreement
dated as of June 16, 1999 (the "EQI II Affected Operating Lease") for the
operation of the five (5) EQI II Properties identified on Schedule 1-C
attached hereto (the "EQI II Affected Properties"). Pursuant to the EQI V
Loan Documents, EQI V Borrower has granted Original Lender a security
interest in the operating leases for the EQI V Properties (the "EQI V
Existing Operating Leases"; together with the EQI II Existing Operating
Leases, the "Existing Operating Leases"), including, without limitation,
that certain Consolidated Lease Agreement dated as of __________ (the "EQI
V Affected Operating Lease"; together with the EQI II Affected Operating
Lease the "Affected Operating Lease") for the operation of six (6) of the
EQI V Properties identified on Schedule 1-C attached hereto (the "EQI V
Affected Properties"; together with the EQI II Affected Properties, the
"Affected Properties").
D. Original Lender has assigned, sold and transferred its interest in
the Loan and all Loan Documents to Lender. Lender is the current holder of
all or a portion of the Note and of Original Lender's interest in the Loan
and Loan Documents.
E. EQI II Borrower continues to be the owner of the EQI II Properties
and improvements thereon described in and encumbered by the EQI II
Mortgages and other EQI II Loan Documents. EQI V Borrower continues to be
the owner of the EQI V Properties and improvements thereon described in and
encumbered by the EQI V Mortgages and other EQI V Loan Documents.
F. In order to receive the benefit of certain changes in federal tax
law relating to "taxable REIT subsidiaries," EQI II Borrower has requested
that it be allowed (i) to terminate the EQI II Affected Operating Lease and
enter into a new lease (the "EQI II New Operating Lease") with EQI II New
Tenant, for the EQI II Affected Properties, and which EQI II New Operating
Lease shall be in the form attached hereto as Exhibit A-1; and (ii) to
enter into the new property management agreements (the "EQI II New
Management Agreements") in the forms attached hereto as Exhibit B-1 for the
EQI II Affected Properties and (iii) to enter into certain other related
transactions as described in that lease restructuring transaction summary
("Transaction Summary") attached hereto as Schedule 2 and made a part
hereof. (These transactions and the other transactions described in the
Transaction Summary which relate to the EQI II Affected Properties are
hereinafter collectively referred to as the "EQI II Lease Restructuring").
Similarly, EQI V Borrower has requested that it be allowed (i) to terminate
the EQI V Affected Operating Lease and enter into a new lease (the "EQI V
New Operating Leases"; together with the EQI II New Operating Leases, the
"New Operating Leases") with EQI V New Tenant for the EQI V Affected
Properties, which EQI V New Operating Lease
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shall be in the form attached hereto as Exhibit A-2; and (ii) to enter into
the new property management agreements (the "EQI V New Management
Agreements"; together with the EQI II New Management Agreements, the "New
Management Agreements") in the forms attached hereto as Exhibit B-2 for the
EQI V Affected Properties and (iii) to enter into certain other related
transactions as described in the Transaction Summary. (These transactions
and the other transactions described in the Transaction Summary which
relate to the EQI V Affected Properties are hereinafter collectively
referred to as the "EQI V Lease Restructuring"; together with the EQI II
Lease Restructuring, the "Lease Restructuring"). The Lease Restructuring
will leave in place and will not amend or modify in any way any Existing
Operating Leases that are not also Affected Operating Leases (the
"Unaffected Operating Leases").
F. Lender is willing to consent to the Lease Restructuring, subject to
the Mortgages and the other Loan Documents, and subject to the affirmation
by Borrower of the Loan and the affirmation of the Guarantor (as
hereinafter defined) of its obligations under the Environmental Agreement
and the Guaranty (as each such term is hereinafter defined), on and subject
to the terms and conditions set forth in this Agreement, the Mortgage and
the other Loan Documents.
G. Borrower, Guarantor and Lender, by their respective execution
hereof, evidence their consent to the modification and affirmation of the
Loan Documents as hereinafter set forth, and Lender, by its execution
hereof, consents to the Lease Restructuring as and to the extent set forth
herein.
Statement of Agreement
In consideration of the mutual covenants and agreements set forth
herein, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not expressly defined herein
shall have the meanings set forth in the Mortgage, or if not therein
defined, in the Loan Agreement.
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2. Representations, Warranties, and Covenants of Borrower.
(a) (1) Borrower hereby represents, warrants and covenants to
Lender that: (i) the Lease Restructuring, and all organizational
formalities in connection therewith (including compliance with applicable
laws, statutes and controlling authority), will have been completed on or
prior to the Effective Date; (ii) the two Promissory Notes constituting the
EQI II Note have an unpaid principal balance of $3,735,482.48 and
$90,643,816.24, respectively, as of September 27, 2001, and that the EQI V
Note has a unpaid principal balance of $35,658,620.17 as of September 27,
2001; (iii) the Mortgages are a valid first lien on the Properties, and on
Borrower's interests in the Existing Operating Leases, for the full unpaid
principal amount of the Loan and all other amounts as stated therein; (iv)
to the knowledge of Borrower, there are no defaults by Borrower under the
provisions of the Existing Operating Leases, the Note, the Mortgages or the
other Loan Documents; (v) there are no defenses, set-offs or rights of
defense, set-off or counterclaim, whether legal, equitable or otherwise, to
the obligations evidenced by or set forth in the Existing Operating Leases,
the Note, the Mortgages or the other Loan Documents; (vi) all provisions of
the Note, Mortgages and the other Loan Documents are in full force and
effect, except as modified herein; (vii) except as disclosed in the title
policies issued in connection with the initial closings of the EQI II Loan
and the EQI V Loan, there are no material liens or material encumbrances of
any kind covering or relating to the Properties nor are there any material
mechanics' liens or material liens for unpaid taxes or assessments
encumbering the Properties, nor has notice of a material lien or notice of
intent to file a material lien been received; (viii) nothing in the Lease
Restructuring will affect or impact in any way the Properties which are not
Affected Properties (the "Unaffected Properties") or the Unaffected
Operating Leases, which remain in full force and effect; (ix) prior to the
date hereof, the Affected Properties had no separate property management
agreements associated therewith, but rather, the property management
functions were addressed in the Affected Operating Leases; (x) the EQI II
Mortgages remain cross-defaulted and all of the EQI II Properties
cross-collateralize each other as collateral for the EQI II Loan, and the
EQI V Mortgages remain cross-defaulted and all of the EQI V Properties
cross-collateralize each other as collateral for the EQI V Loan; and (xi)
the Lease Restructuring shall be completed in accordance with all
applicable law, including federal tax law applicable to New Tenant as a
"taxable REIT subsidiary" and the requirements that each property manager
under the New Management Agreements be an "eligible independent contractor"
of the New Tenant.
(2) Borrower further represents and warrants as
follows:
(A) New Tenant is an Affiliate of Borrower.
(B) New Tenant is a Taxable REIT Subsidiary
within the meaning of Section 856(1) of the Code (as defined in the EQI V
Loan Agreement).
(C) Rent and other sums due and payable
under the New Operating Lease shall qualify under Section 856(d)(8) of the
Code.
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(D) The New Operating Lease contains
substantially the same terms as are contained in the operating lease
attached to the EQI V Loan Agreement as Exhibit B thereof. The initial term
of the EQI II New Operating Lease shall expire no earlier than the Optional
Prepayment Date (as defined in the EQI II Note), and the initial term of
the EQI V New Operating Lease shall expire no earlier than the Anticipated
Payment Date (as defined in the EQI V Loan Agreement).
(E) The Lease Estoppel (as defined herein)
contains substantially the same terms as are contained in the subordination
agreement attached to the EQI V Loan Agreement as Exhibit D thereof, except
that New Tenant has waived certain of its non-disturbance rights.
(F) Manager meets the requirements for an
"eligible independent contractor" within the meaning of Section 856(d)(9)
of the Code.
(G) The New Management Agreements, as modified by the
Manager's Consent (as defined herein), with respect to Lender's rights and
obligations in and to the New Management Agreement, provide that (x) the
fees payable under the New Management Agreement are subordinate to the Loan
Agreement and to the Mortgages, (ii) the applicable Manager is not an
Affiliate of Borrower, (iii) neither Lender nor any purchaser at
foreclosure or party which accepts a deed in lieu of foreclosure shall have
any obligation regarding the payment of such fees, and (iv) such fees shall
not be a Lien on the applicable Individual Property, and (y) if there is a
continuing Event of Default or if the Anticipated Payment Date, with
respect to the EQI V Loan, or the Optional Prepayment Date, with respect to
the EQI II Loan, has occurred and the Loan has not been repaid, or, if any
time during the term of the Loan, Manager shall become insolvent or a
debtor in any bankruptcy or insolvency proceeding, the Management
Agreements may be terminated by Lender without penalty or fee. The initial
term of the EQI II New Management Agreements shall expire no earlier than
the date of the expiration of the initial term under the EQI II Affected
Operating Lease, and the initial term of the EQI V New Management
Agreements shall expire no earlier than the date of the expiration of the
initial term under the EQI V Affected Operating Lease.
(H) The New Franchise Agreements (as defined herein) are
in substantially the same form as the franchise agreement forms attached to
the EQI V Loan Agreement as Exhibit C thereof, and the initial term of the
New Franchise Agreements and of the related Reservation System Agreements
shall expire no earlier than the Optional Prepayment Date, in the case of
those New Franchise Agreements relating to the EQI II Properties, and no
earlier than the Anticipated Payment Date, in the case of those New
Franchise Agreements relating to the EQI V Properties.
(3) Borrower hereby ratifies, affirms and acknowledges the
following covenants and agreements: (i) to pay when and as due all sums due
under the Note and the other Loan Documents, each as modified hereby; (ii)
to perform and discharge all obligations imposed under the Mortgages and
all other Loan Documents, at the time, in the
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manner and otherwise in all respects as therein provided, each as modified
hereby; (iii) after termination of the Affected Operating Leases and
entering into the New Operating Leases in substitution therefor, to enforce
and administer such New Operating Leases in accordance with the
requirements of the Loan Documents; (iv) upon termination of the existing
property management agreements and entering into the New Management
Agreements in substitution therefor, to enforce and administer the same in
accordance with the requirements of the Loan Documents; (v) to request an
extension to the term of each New Management Agreement on a month-to-month
basis in accordance with the terms of such management agreements if at the
expiration of the term of such agreement no replacement management
agreement meeting the requirements of this Agreement has been entered into;
(vi) to confirm and ensure that the New Tenant is and remains a
wholly-owned direct or indirect subsidiary of EIP through repayment in full
of the Loan; (vii) it will use its best efforts to confirm and ensure that
all receivables, profits and revenues payable by the prior property
managers to the lessees under the Affected Operating Leases are delivered
and pro-rated as of the Effective Date, with all subsequent receivables and
revenues attributable to time periods thereafter being paid to New Tenant
under the New Operating Leases; (viii) to confirm and ensure that rentals
and other payments under the Unaffected Operating Leases will continue to
be paid in accordance with the Lockbox Agreement and that all rentals and
other sums payable under the New Operating Leases will also be paid in
accordance with the Lockbox Agreement; and (ix) to confirm and ensure that
neither Borrower nor, by its acknowledgment of this Agreement, New Tenant
shall challenge the validity or enforceability of the New Operating Leases,
and if the validity or enforceability of either such lease is challenged by
another party or is for any reason declared void, invalid or unenforceable,
Borrower and New Tenant shall promptly enter into a replacement lease,
reasonably acceptable to Lender, with such modifications as are necessary
to render such lease valid and enforceable, which replacement lease shall
be and remain subject to the lien of the Mortgages and the other Loan
Documents.
(4) Borrower shall not hereafter, without Lender's prior consent
in accordance with the terms of the Loan Documents, encumber the Properties
or sell or transfer any of the Properties or any interest therein, or sell
or transfer any interest in Borrower or any party holding an interest in
Borrower, except as may be specifically permitted in the Loan Documents.
Borrower shall not hereinafter, without Lender's prior consent in
accordance with the terms of the Loan Documents, modify, terminate,
replace, supplement or renew the New Operating Leases or the New Management
Agreements, except as may be specifically permitted in the Loan Documents,
as modified hereby.
(b) Borrower understands and intends that Lender shall rely on
the representations, warranties and covenants contained herein.
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3. Representations, Warranties and Covenants of Guarantor.
(a) Guarantor hereby represents and warrants to Lender that:
(i) to the knowledge of Guarantor, there are no defaults by Guarantor under
the provisions of (x) that certain Guaranty of Recourse Obligations dated
June 16, 1999 by the EQI II Guarantors in favor of Lender (as amended, the
"EQI II Guaranty") or that certain Joinder dated as of October 20, 2001 by
the EQI V Guarantors, which Joinder is attached to the EQI V Loan Agreement
(as amended, the "EQI V Guaranty"; together with the EQI II Guaranty, the
"Guaranty"), or (y) that certain Environmental Indemnity Agreement dated
June 16, 1999 by the EQI II Guarantors in favor of Lender (as amended, the
"EQI II Environmental Agreement") or that certain Hazardous Materials
Agreement dated as of October 20, 2000 by the EQI V Guarantor (as amended,
the "EQI V Environmental Agreement"; together with the EQI II Environmental
Agreement, the "Environmental Agreement") or the other Loan Documents; (ii)
there are no defenses, setups or rights of defense, setoff or counterclaim,
whether legal, equitable or otherwise, to the obligations evidenced by or
set forth in the Guaranty, Environmental Agreement or the other Loan
Documents; and (iii) all provisions of the Guaranty, Environmental
Agreement and other Loan Documents are in full force and effect, except as
modified herein. Guarantor hereby ratifies, affirms and covenants to
perform and discharge all obligations imposed under the Guaranty, the
Environmental Agreement and all other Loan Documents, at the time, in the
manner and otherwise in all respects as therein provided.
(b) Guarantor understands and intends that Lender shall rely
on the representations, warranties and covenants contained herein.
4. Modification of Loan Documents. Borrower, Guarantor and Lender
hereby acknowledge and agree that the Mortgage, Loan Agreement and other
Loan Documents shall be modified as follows:
(a) New Operating Leases. References in any of the Loan
Documents to an "Operating Lease" or an "operating lease" shall refer to
(i) the appropriate New Operating Lease for each Affected Property, as
reflected on Schedule 1-C, and (ii) the Unaffected Operating Leases.
(b) New Management Agreements. References in any of the Loan
Documents to a "Management Agreement" or a "management agreement" with
respect to any Affected Property shall refer, respectively, to the
corresponding New Management Agreement.
(c) Notices. The addresses for the various notice parties
set forth in the Loan Documents shall be modified as follows:
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If to EQI II Borrower: EQI Financing Partnership II, L.P.
EQI/WV Financing Partnership, L.P.
c/o Equity Inns, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Silver, President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Hunton & ▇▇▇▇▇▇▇▇
Riverfront Plaza, East Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Hunton & ▇▇▇▇▇▇▇▇
2000 Riverview Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to EQI V Borrower: EQI Financing Partnership V, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Hunton & ▇▇▇▇▇▇▇▇
Riverfront Plaza, East Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
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Hunton & ▇▇▇▇▇▇▇▇
2000 Riverview Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lender: Norwest Bank Minnesota, National
Association, as trustee
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services
(CMBS)- GMAC
Commercial Mortgage Securities, Inc.,
Mortgage
Pass-Through Certificates,
Series 1999 -C3
and
LaSalle Bank National Association, as
trustee
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities
Trust Services
Group - GMAC Commercial Mortgage
Securities, Inc., Series 2000-C1
and
LaSalle Bank National Association,
as trustee
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities
Trust Services
Group - GMAC Commercial Mortgage
Securities, Inc., Series 2000-C3
With a copy to: GMAC Commercial Mortgage Corporation
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Servicing - Executive Vice
President
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Zavis
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
10
If to EQI II New Tenant: ENN Leasing Company II, L.L.C.
c/o Equity Inns, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. Silver
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Hunton & ▇▇▇▇▇▇▇▇
Riverfront Plaza, East Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Hunton & ▇▇▇▇▇▇▇▇
2000 Riverview Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to EQI V New Tenant: ENN Leasing Company V, L.L.C.
c/o Equity Inns, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. Silver
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Hunton & ▇▇▇▇▇▇▇▇
Riverfront Plaza, East Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
11
Hunton & ▇▇▇▇▇▇▇▇
2000 Riverview Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(d) New Franchise Agreements. In all of the Loan Documents
which pertain to an Affected Property, references to a "Franchise
Agreement" or a "franchise agreement" with respect to any Affected Property
shall refer, respectively, to the corresponding New Franchise Agreement.
(e) Loan Documents. In all of the Loan Documents which
pertain to an Affected Property, references to a "Loan Document" shall be
deemed to include (i) this Agreement and (ii) the Management Agreement
Guaranty (as herein defined).
5. Affirmation of Obligations. Borrower and Guarantor hereby affirm the
present and continuing existence and validity of their respective
obligations set forth in the Note, Guarantor, Environmental Agreement and
the other Loan Documents, in accordance with their respective terms and
conditions, as the same may be modified by this Agreement. Borrower and
Guarantor further agree to abide by and be bound by all of the terms of the
Loan Documents, including but not limited to, the representations,
warranties, covenants, assurances and indemnifications therein. Borrower
and Guarantor hereby acknowledge, agree and warrant that all rights,
priorities, titles, liens and equities securing the payment of the Note are
expressly recognized as valid and are in all respects renewed, continued
and preserved in force to secure payment of the Note, except as amended
herein.
6. Affirmation of Confession Judgment Provisions in EQI II Loan
Documents. Upon the occurrence of an Event of Default (as defined in the
EQI II Mortgage), EQI II Borrower hereby authorizes and empowers any
attorney or attorneys or the Prothonotary or Clerks of any Court in the
Commonwealth of Pennsylvania, or elsewhere, to appear for EQI II Borrower
in any such Court in an appropriate action there or elsewhere brought or to
be brought against EQI II Borrower at the suit of Lender on the EQI II
Note, with or without suit or declaration filed, as of any term or time
there or elsewhere to be held, and therein to CONFESS OR ENTER JUDGMENT
against EQI II Borrower for an amount equal to the obligations due
thereunder, under the EQI II Loan Agreement and under the other EQI II Loan
Documents (with or without acceleration of maturity), including all costs
and attorneys' fees. EQI II Borrower expressly authorizes the entry of
repeated judgments under this paragraph notwithstanding any prior entry of
judgment in the same or any other court for the same obligation or part
thereof.
EQI II BORROWER ACKNOWLEDGES THAT IT WAS REPRESENTED
BY COUNSEL IN CONNECTION WITH THE EXECUTION OF THE NOTE AND THIS
AGREEMENT AND THAT IT UNDERSTANDS THIS PROVISION FOR CONFESSION
12
OF JUDGMENT. EQI II BORROWER REPRESENTS TO LENDER THAT ▇▇▇▇▇▇ ▇.
BEST, ESQ. AND ▇▇▇▇ ▇▇▇▇▇, ESQ. OF THE LAW FIRM HUNTON & ▇▇▇▇▇▇▇▇
HAS EXPLAINED THE PROVISIONS OF THIS CONFESSION OF JUDGMENT TO EQI
II BORROWER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EQI II
BORROWER WAIVES ANY RIGHT TO NOTICE OR A HEARING WHICH IT MIGHT
OTHERWISE HAVE BEFORE ENTRY OF JUDGMENT.
7. Conditions. This Agreement shall be of no force and effect
until each of the following conditions has been met, no later than
September 31, 2001, to the reasonable satisfaction of Lender:
(a) Fees and Expenses. Borrower shall pay, or cause to be
paid, all reasonable out-of-pocket costs and expenses incurred by GMAC
Commercial Mortgage Corporation ("GMACCM") in its capacity as master
servicer and servicer to Lender, in connection with the review, analysis,
consideration, preparation, execution and consummation of the transaction
contemplated hereby, including, but not limited to, internal review and
processing fees, fees and expenses of the applicable rating agencies and
their counsel, title insurance premiums, and reasonable fees and expenses
of legal counsel to GMACCM.
(b) Lease and Loan Documents. Borrower shall execute and
deliver to Lender, in triplicate, such complete documents and agreements,
including all schedules and exhibits, as Lender may reasonably require to
effectuate the Lease Restructuring, including without limitation,
fully-executed counterparts of the New Operating Lease, New Management
Agreements, the Consolidated Lease Estoppel, Subordination and Attornment
Agreement attached hereto as Exhibit C (the "Lease Estoppel"), the
Manager's Consent and Subordination Agreements attached hereto as Exhibit D
(the "Manager's Consent"), the comfort letters from the hotel franchisors
attached hereto as Exhibit E, and the new franchise/license agreements
referenced in such comfort letters, attached hereto as Exhibit F (the "New
Franchise Agreements", the Guaranty of Manager's Obligations under the
Management Agreement attached hereto as Exhibit G (the "Management
Agreement Guaranty"), and the Lockbox Agreement notice letters attached
hereto as Exhibit H.
(c) Opinions of Counsel. Borrower shall cause counsel for
Borrower to deliver to Lender such counsel's opinions to the effect, among
other things, that: (i) Borrower is validly organized and is in good
standing under the laws of the state of formation, and has the full power
and authority to execute and deliver this Agreement and the other Loan
Documents, as amended hereby, on behalf of Borrower, Guarantor and New
Tenant; (ii) Borrower's, Guarantor's and New Tenant's execution, delivery
and performance hereof have been duly and validly authorized by all
necessary corporate, partnership, real estate investment trust, or limited
liability company action, as appropriate; (iii) Borrower, Guarantor and New
Tenant validly executed and delivered this Agreement pursuant to authority
duly given; (iv) this Agreement and the Loan Documents, as amended hereby,
constitute the legal, valid and binding obligations of Borrower, Guarantor
and New Tenant, as the case may be, enforceable in accordance with their
terms; (v) such counsel's "non-consolidation opinion," in form and content
acceptable to Lender, with respect to the transactions contemplated
13
hereby; and (vi) such counsel's additional opinion regarding the "single
member with springing member" provisions of the New Tenant's organizational
documents.
(d) Rating Agency Confirmation. Borrower shall have
caused all rating agencies which have issued ratings in connection with the
securitization of the Loan to issue a "no-downgrade" opinion.
(e) Organizational Documents. Borrower shall have delivered,
in triplicate, certified copies of the limited liability company
agreements, good standing certificates, certificates of existence and
authority to transact business and other appropriate charter documents of
the New Tenant, its sole member and its potential "springing member,"
together with resolutions and other appropriate authorizations confirming
the authority to enter into all documents necessary to consummate the Lease
Restructuring as well as a certificate from the appropriate entity or
person stating that such documents have not been amended, modified, or
terminated in any way since the First EQI II Lease Restructuring or the
First EQI V Lease Restructuring, as applicable.
If any of the above conditions have not been met by September
31, 2001, the Lender consent set forth herein shall be automatically
revoked and canceled as if such consent had never been given, without any
further action or notification of any kind from Lender.
8. Consent to Transaction. Subject to the terms and conditions set
forth in this Agreement, Lender consents to the Lease Restructuring, to the
New Management Agreements, and to the New Franchise Agreements. Lender's
consent to the Lease Restructuring shall not constitute its consent to any
subsequent transactions of a similar nature, including any terminations and
replacements of the New Operating Leases or the Unaffected Operating
Leases, any changes to the management of any of the Properties and any
changes in the franchisors, licensors or franchise/license agreements for
any of the Properties. Borrower acknowledges and agrees that Lender's
consent herein contained is expressly limited to the Lease Restructuring,
and that such consent shall not waive or render unnecessary Lender's
consent or approval of any other transaction currently prohibited by the
provisions of the Loan Documents, as modified hereby.
9. Additional Representations, Warranties and Covenants. As a
condition of this Agreement, Borrower, New Tenant and Guarantor, represent,
warrant and covenant to Lender as follows:
(a) Neither the entry into nor the performance of and
compliance with this Agreement or any of the Loan Documents has resulted or
will result in any material violation of, or a conflict with or a default
under, any judgment, decree, order, mortgage, indenture, contract, ground
lease, agreement or lease by which Borrower, New Tenant, Guarantor or any
property owned by any of them, is bound, or any statute, rule, charter
document or regulation applicable to any of them.
(b) Borrower, New Tenant and Guarantor each have full power
and authority to enter into this Agreement and all documents necessary to
accomplish the Lease
14
Restructuring and to incur and perform the obligations provided for herein
and therein, all of which have been duly authorized by all necessary
internal approvals and resolutions of Borrower, New Tenant and Guarantor,
and no consent or approval of any third party other than those that will
have been obtained and will be in effect as of the Effective Date is
required as a condition to the Lease Restructuring or as a condition to the
validity or enforceability hereof or thereof. This Agreement has been duly
executed and delivered by Borrower, New Tenant and Guarantor and this
Agreement constitutes, and each of the documents executed in connection
with the Lease Restructuring after due execution and delivery thereof shall
constitute, the legal and valid obligation of Borrower, New Tenant and
Guarantor, fully enforceable against such parties in accordance with their
respective terms, subject to bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and other laws affecting the rights of creditors
generally and the application of general principals of equity.
(c) There is no action, proceeding or investigation pending or
threatened which questions, directly or indirectly, the validity or
enforceability of this Agreement or any of the other Loan Documents, or any
action taken or to the knowledge of Borrower, New Tenant and Guarantor to
be taken pursuant hereto or thereto, or to the knowledge of Borrower, New
Tenant and Guarantor which might result in any material adverse change in
the condition (financial or otherwise) or business of Borrower, New Tenant
or Guarantor.
(d) Without limiting the generality of the acknowledgment of
the existence and validity of the Loan Documents by the Borrower and
Guarantor and the affirmation of the Loan Documents by the Borrower and
Guarantor, Borrower and Guarantor hereby specifically remake and reaffirm
the representations, warranties and covenants set forth in the Loan
Documents.
(e) To the best knowledge of Borrower, Guarantor and New
Tenant, after due investigation and inquiry, the Transaction Summary fairly
and completely describes all transactions contemplated to be taken in
connection therewith (other than actions or steps which individually and in
the aggregate could not adversely affect repayment of any portion of the
Loan or Lender's lien position as to any of the New Operating Leases or any
of the Properties), and no representation or warranty made in this
Agreement or the documents attached hereto or delivered in connection
herewith contains any untrue statement of material fact or omits to state a
material fact necessary in order to make such representations and
warranties not misleading in light of the circumstances under which they
are made.
(f) Upon the Effective Date, the New Operating Leases shall be
the valid, binding and enforceable obligations of Borrower and New Tenant,
and shall be and remain subject to the existing first liens and security
interests of Lender pursuant to the Mortgages and the other Loan Documents
on a basis that is subordinate and inferior to such liens and security
interests held by Lender.
(g) Upon the Effective Date, the New Management Agreements
shall be the valid, binding and enforceable obligations of Borrower and/or
New Tenant thereunder,
15
and shall remain subject to the existing first liens and security interests
of Lender pursuant to the Mortgages and other Loan Documents on a basis
that is subordinate and inferior to such liens and surety interests held by
Lender, except to the extent set forth in the Manager Consent and
Subordination Agreements attached hereto.
(h) To the best knowledge of Borrower, Guarantor and New
Tenant, after due investigation and inquiry, there is no default, event of
default or event with which the giving of notice or the passage of time
could become a default or event of default under the Unaffected Operating
Leases or under any other material agreement relating in any way to the
Properties, which in each case, could reasonably be expected to have a
material adverse effect on the repayment of the Loan or on Lender's lien
and security interests in the property described in the Mortgages.
10. Incorporation of Recitals. Each of the Recitals set forth above in
this Agreement are incorporated herein and made a part hereof.
11. Property Remains as Security for Lender. All of the real and
personal property described in the Mortgages shall remain in all respects
subject to the lien, charge or encumbrance of the Mortgages, and, except as
expressly set forth herein, nothing herein contained and nothing done
pursuant hereto shall affect or be construed to release or affect the
liability of any party or parties who may now or hereafter be liable under
or on account of the Note, the Mortgages or any of the other Loan
Documents, nor shall anything herein contained or done in pursuance hereof
affect or be construed to affect any other security for the Note, if any,
held by Lender.
12. No Waiver by Lender. Nothing contained herein shall be deemed
a waiver of any of Lender's rights or remedies under the Note or any of the
other Loan Documents.
13. References. All references in any of the Loan Documents to any
of the other Loan Documents will be deemed to be references to such of the
Loan Documents as modified by this Agreement.
14. Relationship with Loan Documents. To the extent that this Agreement
is inconsistent with any of the Loan Documents, this Agreement will control
and such Loan Document will be deemed to be amended hereby. Except as
amended hereby, the Loan Document shall remain unchanged and in full force
and effect.
15. Captions. The headings to the Sections of this Agreement have
been inserted for convenience of reference only and shall in no way modify
or restrict any provisions hereof or be used to construe any such
provisions.
16. Partial Invalidity. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable, and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provision had
never comprised a part of this Agreement.
16
17. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto and shall not be amended unless such amendment is
in writing and executed by each of the parties. The Agreement supersedes
all prior negotiations regarding the subject matter hereof.
18. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns; provided, however, that the foregoing provisions of this Section
shall not be deemed to be a consent by Lender to any sale, conveyance,
assignment or transfer of the Property or any interest therein, or any
sale, conveyance, assignment or transfer of any interest in Borrower or any
party holding an interest in Borrower, except to the extent permitted under
the Loan Documents.
19. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be an original, but all of which, taken
together, will constitute one and the same Agreement.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, provided,
however, to the extent that this Agreement relates to matters concerning
the EQI V Loan, this Agreement shall be governed by the laws of the State
of New York.
21. Effective Date. This Agreement shall be effective as of the
Effective Date and thereupon shall be incorporated into the terms of the
Loan Documents.
17
List of Schedules and Exhibits Attached Hereto and Made a Part Hereof
Schedule 1-A: List of EQI II Properties
Schedule 1-B: List of EQI V Properties
Schedule 1-C: List of Affected Properties, subject to the New Operating Leases
Schedule 2: Transaction Summary
Exhibit A-1: Consolidated Lease Agreement for EQI II
Exhibit A-2: Consolidated Lease Agreement for EQI V
Exhibit B-1: EQI II New Management Agreements
Exhibit B-2: EQI V New Management Agreements
Exhibit C: Consolidated Lease Estoppel, Subordination and Attornment
Agreement
Exhibit D: Manager's Consent and Subordination
Exhibit E: Comfort Letters
Exhibit F: New Franchise Agreements
Exhibit G: Guaranty of Manager's Obligations under Management Agreement
Exhibit H: Direction Letters relating to Lockbox Agreement
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES APPEAR ON FOLLOWING PAGES]
18
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first aforesaid.
BORROWER:
EQI FINANCING PARTNERSHIP II, L.P., a
Tennessee limited partnership
By: EQI Financing Corporation II,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
State of Tennessee )
) SS.
County of Shelby )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, the President of EQI Financing Corporation II, a
Tennessee corporation, as general partner of EQI Financing Partnership II,
L.P., a Tennessee limited partnership, who acknowledged that he/she
executed the foregoing instrument for and on behalf of said corporation,
that the same was his/her own free act and deed, individually and as such
officer, and the free act and deed of the corporation on behalf of said
limited partnership.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 15 day
of October, 2001.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Notary Public
My commission expires: 12/1/02.
--------
BORROWER:
EQI FINANCING PARTNERSHIP V, L.P., a
Tennessee limited partnership
By: EQI Financing Corporation V,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
State of Tennessee )
) SS.
County of Shelby )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, the President of EQI Financing Corporation V, a
Tennessee corporation, as general partner of EQI Financing Partnership V,
L.P., a Tennessee limited partnership, who acknowledged that he/she
executed the foregoing instrument for and on behalf of said corporation,
that the same was his/her own free act and deed, individually and as such
officer, and the free act and deed of the corporation on behalf of said
limited partnership.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 15 day
of October, 2001.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Notary Public
My commission expires: 12/1/02.
--------
BORROWER:
EQI/WV FINANCING PARTNERSHIP II,
L.P.,
a Tennessee limited partnership
By: EQI Financing Corporation II,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
State of Tennessee )
) SS.
County of Shelby )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, the President of EQI Financing Corporation II, a
Tennessee corporation, as general partner of EQI/WV Financing Partnership
II, L.P., a Tennessee limited partnership, who acknowledged that he/she
executed the foregoing instrument for and on behalf of said corporation,
that the same was his/her own free act and deed, individually and as such
officer, and the free act and deed of the corporation on behalf of said
limited partnership.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 15 day
of October, 2001.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Notary Public
My commission expires: 12/1/02.
--------
GUARANTOR:
EQUITY INNS PARTNERSHIP, L.P., a
Tennessee limited partnership
By: Equity Inns Trust, a Maryland
real estate investment trust,
its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
State of Tennessee )
) SS.
County of Shelby )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, the President of Equity Inns Trust, a Maryland real
estate investment trust, the general partner of Equity Inns Partnership,
L.P., a Tennessee limited partnership, who acknowledged that he/she
executed the foregoing instrument for and on behalf of said real estate
investment trust, that the same was his/her own free act and deed,
individually and as such officer, and the free act and deed of the real
estate investment trust on behalf of said limited partnership.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 15 day
of October, 2001.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Notary Public
My commission expires: 12/1/02.
--------
GUARANTOR:
EQUITY INNS, INC., a Tennessee
corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
State of Tennessee )
) SS.
County of Shelby )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, the President of Equity Inns, Inc., a Tennessee
corporation, who acknowledged that he/she executed the foregoing instrument
for and on behalf of said corporation, that the same was his/her own free
act and deed, individually and as such officer, and the free act and deed
of the corporation.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 15 day
of October, 2001.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Notary Public
My commission expires: 12/1/02.
--------
GUARANTOR:
EQUITY INNS TRUST, a Maryland real
estate investment trust
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
State of Tennessee )
) SS.
County of Shelby )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, the President of Equity Inns Trust, a Maryland real
estate investment trust, who acknowledged that he/she executed the
foregoing instrument for and on behalf of said corporation, that the same
was his/her own free act and deed, individually and as such officer, and
the free act and deed of the corporation.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 15 day
of October, 2001.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Notary Public
My commission expires: 12/1/02.
--------
LENDER:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee for the
registered holders of GMAC Commercial
Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series
1999-C3
By: GMAC COMMERCIAL MORTGAGE
CORPORATION, a California
corporation, as Master Servicer
and Special Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
State of Pennsylvania )
) SS.
County of ▇▇▇▇▇▇▇▇▇▇ )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Vice President of GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation, the Master Servicer and Special
Servicer on behalf of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as
trustee for the registered holders of GMAC Commercial Mortgage Securities,
Inc., Mortgage Pass- Through Certificates, Series 1999-C3, who acknowledged
that he/she executed the foregoing instrument for and on behalf of said
entity, that the same was his/her own free act and deed, individually and
as such officer, and the free act and deed of the corporation.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 11 day
of October, 2001.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Notary Public
My commission expires: Nov. 15, 2003.
--------------
LENDER:
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for the registered holders
of GMAC Commercial Mortgage
Securities, Inc., Mortgage
Pass-Through Certificates, Series
2000-C1
By: GMAC COMMERCIAL MORTGAGE
CORPORATION, a California
corporation, as Master Servicer
and Special Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
State of Pennsylvania )
) SS.
County of ▇▇▇▇▇▇▇▇▇▇ )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Vice President of GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation, the Master Servicer and Special
Servicer on behalf of LASALLE BANK NATIONAL ASSOCIATION, as trustee for the
registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2000-C1, who acknowledged that he/she
executed the foregoing instrument for and on behalf of said entity, that
the same was his/her own free act and deed, individually and as such
officer, and the free act and deed of the corporation.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 11 day
of October, 2001.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Notary Public
LENDER:
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for the registered holders
of GMAC Commercial Mortgage
Securities, Inc., Mortgage
Pass-Through Certificates, Series
2000-C3
By: GMAC COMMERCIAL MORTGAGE
CORPORATION, a California
corporation, as Master Servicer
and Special Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
State of Pennsylvania )
) SS.
County of ▇▇▇▇▇▇▇▇▇▇ )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Vice President of GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation, the Master Servicer and Special
Servicer on behalf of LASALLE BANK NATIONAL ASSOCIATION, as trustee for the
registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2000-C3, who acknowledged that he/she
executed the foregoing instrument for and on behalf of said entity, that
the same was his/her own free act and deed, individually and as such
officer, and the free act and deed of the corporation.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 11 day
of October, 2001.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Notary Public
NEW TENANT:
ENN LEASING COMPANY II, L.L.C., a
Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
State of Tennessee )
) SS.
County of Shelby )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, the President of ENN LEASING COMPANY II, L.L.C., a
Delaware limited liability company, who acknowledged that he/she executed
the foregoing instrument for and on behalf of said company, that the same
was his/her own free act and deed, individually and as such officer, and
the free act and deed of the company.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 15 day
of October, 2001.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Notary Public
My commission expires: 12/1/02.
--------
NEW TENANT:
ENN LEASING COMPANY V, L.L.C., a
Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
State of Tennessee )
) SS.
County of Shelby )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, the President of ENN LEASING COMPANY V, L.L.C., a
Delaware limited liability company, who acknowledged that he/she executed
the foregoing instrument for and on behalf of said company, that the same
was his/her own free act and deed, individually and as such officer, and
the free act and deed of the company.
IN TESTIMONY WHEREOF, I have hereunder set my hand and seal this 15 day
of October, 2001.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Notary Public
My commission expires: 12/1/02.
--------
SCHEDULE 1-A
EQI II PROPERTIES
Security Instrument Properties
------------------- ----------
1. Mortgage, Assignment of Leases and Rents, 1. AmeriSuites hotel located at 9104 Keystone
Security Agreement and Fixture Filing Crossing, Indianapolis, IN 46240
2. Mortgage, Assignment of Leases and Rents, 2. AmeriSuites hotel located at 6801 West 112th
Security Agreement and Fixture Filing Street, Overland Park, KS 66211
3. Open-End Mortgage, Assignment of Leases and 3. AmeriSuites hotel located at 7490 Vantage
Rents, Security Agreement and Fixture Filing Drive, Columbus, OH 43235
4. Deed of Trust, Assignment of Leases and Rents, 4. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Security Agreement and Fixture Filing ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. Credit Line Deed of Trust, Assignment of Leases 5. AmeriSuites hotel located at 4100 ▇▇▇, ▇▇▇▇
and Rents, Security Agreement and Fixture Filing ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. Mortgage, Assignment of Leases and Rents, 6. Hampton Inn hotel located at 10591 ▇▇▇▇▇▇▇
Security Agreement and Fixture Filing ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
7. Deed of Trust, Assignment of Leases and Rents, 7. Hampton Inn hotel located at 11212 North
Security Agreement and Fixture Filing ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
8. Deed of Trust, Assignment of Leases and Rents, 8. Hampton Inn hotel located at 5320 Poplar
Security Agreement and Fixture Filing Avenue, Memphis, TN 38119
9. Deed of Trust, Assignment of Leases and Rents, 9. Hampton Inn hotel located at 1577 Gateway
Security Agreement and Fixture Filing Boulevard, Richardson, TX 75080
10. Credit Line Deed of Trust, Assignment of Leases 10. Hampton Inn hotel located at 1053 Van ▇▇▇▇▇▇▇
and Rents, Security Agreement and Fixture ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. Leasehold Deed of Trust, Assignment of Leases 11. Homewood Suites hotel located at 2001 East
and Rents, Security Agreement and Fixture Filing ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Open-End Mortgage, Assignment of Leases and 12. Homewood Suites hotel located at 2670 E.
Rents, Security Agreement and Fixture Filing ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13. Deed of Trust, Assignment of Leases and Rents, 13. Homewood Suites hotel located at 4323
Security Agreement and Fixture Filing Spectrum One, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
14. Deed of Trust, Assignment of Leases and Rents, 14. Residence Inn hotel located at 6477 E. Speedway
Security Agreement and Fixture Filing Blvd., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
15. Mortgage, Assignment of Leases and Rents, 15. Residence Inn hotel located at 3040 Eagandale
Security Agreement and Fixture ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
16. Leasehold Mortgage, Assignment of Leases and 16. Residence Inn hotel located at ▇▇ ▇▇▇▇ ▇▇▇▇,
Rents, Security Agreement and Fixture Filing ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
17. Deed of Trust, Assignment of Leases and Rents, 17. Residence Inn hotel located at 1710 NE
Security Agreement and Fixture Filing ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
18. Mortgage, Assignment of Leases and Rents, 18. Hampton Inn hotel located at 20600 ▇▇▇▇▇▇▇▇
Security Agreement and Fixture ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
19. Mortgage, Assignment of Leases and Rents, 19. Residence Inn hotel located at 4225 Route 1,
Security Agreement and Fixture Filing ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE 1-B
EQI V PROPERTIES
Security Instrument Properties
------------------- ----------
1. Mortgage, Assignment of Leases and Rents, 1. AmeriSuites hotel located at 6901 Arvada North
Security Agreement and Fixture Filing ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. Mortgage, Assignment of Leases and Rents, 2. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇,
Security Agreement and Fixture Filing Hoover, AL
3. Deed of Trust, Assignment of Leases and Rents, 3. AmeriSuites hotel located at 940 Linthicum
Security Agreement and Fixture ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. Deed of Trust, Assignment of Leases and Rents, 4. AmeriSuites hotel located at 2455 South ▇▇▇▇▇▇
Security Agreement and Fixture Filing ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. Mortgage, Assignment of Leases and Rents, 5. AmeriSuites hotel located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Security Agreement and Fixture Filing Drive, Forest Park, OH
6. Mortgage, Assignment of Leases and Rents, 6. AmeriSuites hotel located at 4811 West Main
Security Agreement and Fixture Filing Street, Tampa Airport/WestShore, FL
7. Deed of Trust, Assignment of Leases and Rents, 7. Homewood Suites located at 7855 Wolf River
Security Agreement and Fixture Filing Boulevard, Germantown, TN
8. Mortgage, Assignment of Leases and Rents, 8. Residence Inn by Marriott located at 900 ▇▇▇▇
Security Agreement and Fixture Filing Landing Road, Somers Point, NJ
SCHEDULE 1-C
NEW OPERATING LEASES
EQI II Affected Properties
1. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
EQI V Affected Properties
1. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇
3. AmeriSuites hotel located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. AmeriSuites hotel located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
6. AmeriSuites hotel located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇,
▇▇