EXHIBIT 10.4
LOAN AFFIRMATION AND MODIFICATION AGREEMENT
THIS LOAN AFFIRMATION AND MODIFICATION AGREEMENT (this
"Agreement") is made and entered into as of the 31st day of December, 2000 (the
"Execution Date"), but effective as of January 1, 2001 (the "Effective Date"),
by and among EQI FINANCING PARTNERSHIP II, L.P., a Tennessee limited partnership
("EQI"), and EQI/WV FINANCING PARTNERSHIP, L.P., a Tennessee limited partnership
("EQI-WV" and collectively with EQV-II being hereafter referred to as the
"Borrower"), ENN LEASING II, L.L.C., a Delaware limited liability company ("New
Tenant"), EQUITY INNS PARTNERSHIP, L.P., a Tennessee limited partnership
("EIP"), EQUITY INNS, INC., a Tennessee corporation ("EII" and together with
EIP, the "Guarantor"), NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as trustee
for the registered holders of GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999 C-3, and LASALLE BANK NATIONAL
ASSOCIATION, as trustee for the registered holders of GMAC Commercial Mortgage
Securities, Inc., Mortgage Pass-Through Certificates, Series 2000- C1
(collectively, the "Lender").
Recitals
A. GMAC Commercial Mortgage Corporation, a California corporation
("Original Lender"), pursuant to the Loan Documents (as hereinafter defined)
made a loan to Borrower in the original principal amount of $97,020,000.00 (the
"Loan"). The Loan is evidenced by two (2) separate Promissory Notes, in the
maximum aggregate amount equal to the Loan, each dated as of June 16, 1999
(collectively, the "Note") and is secured, inter alia, by (i) a mortgage
recorded in the real property records of ▇▇▇▇▇▇ County, Indiana (the "Mortgage")
and the other mortgages or deeds of trust referenced on Schedule 1-A attached
hereto (collectively, the "Mortgages"), each executed by 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, a "Property", and collectively, the "Properties")
referenced on Schedule 1-A, (ii) nineteen (19) separate assignment of leases,
rents and profits (collectively, the "Assignments"), one for each of the
nineteen (19) separate Properties, and (iii) a certain Lockbox Account Agreement
(the "Lockbox Agreement") dated as of June 16, 1999 among Borrower, Original
Lender and PNC Bank, N.A. The Loan is governed, inter alia, by a Loan Agreement
dated as of June 16, 1999 between Borrower and Original Lender (the "Loan
Agreement"). The 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 Borrower or for the
benefit of Lender and delivered in connection with the Loan, as further
described and defined in the Loan Agreement and the Mortgage (collectively, the
Note,
the Mortgages, the Assignments, the Lockbox Agreement, the Loan Agreement and
such other agreements, contracts, assignments, indemnification agreements,
guarantees and other instruments being hereinafter referred to as the "Loan
Documents").
B. Pursuant to the Loan Documents, Borrower has granted Original Lender
a security interest in the following leases (collectively, the "Existing
Operating Leases") for the operation of the Properties: (i) Consolidated,
Amended and Restated Lease Agreement dated as of June 16, 1999 between EQI, as
lessor, and Crossroads Future Financing Company, L.L.C., as lessee ("Crossroads
Future Operating Lease"); (ii) Consolidated, Amended and Restated Lease
Agreement dated as of June 16, 1999 between EQI, as lessor, and
Crossroads-Memphis Financing Company II, L.L.C., as lessee ("Crossroads-Memphis
Operating Lease"); (iii) Amended and Restated Lease Agreement between EQI-WV as
lessor, and Crossroads/Memphis Financing Company II, L.L.C., as lessee (the
"West Virginia Operating Lease"; the West Virginia Operating Lease, Crossroads
Future Operating Lease and Crossroads-Memphis Operating Lease being hereinafter
referred to as the "Original Subject Leases"); and (iv) a Consolidated, Amended
and Restated Lease Agreement dated as of June 16, 1999 between EQI, as lessor,
and ▇▇▇▇▇ Holding Corp., as tenant (the "▇▇▇▇▇/Prime Operating Lease").
C. 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.
D. Borrower continues to be the owner of the Property and improvements
thereon described in and encumbered by the Mortgage and other Loan Documents.
E. In order to receive the benefit of certain changes in federal tax
law relating to "taxable REIT subsidiaries," Borrower has requested that it be
allowed (i) to terminate the Original Subject Leases and enter into two (2) new
leases (the "New Operating Leases") with ENN Leasing II, L.L.C., a Delaware
limited liability company ("New Tenant"), for the Properties covered thereby,
which Properties (the "Affected Properties") are listed on Schedule 1-B, and
which New Operating Leases shall be in the forms attached hereto as Exhibit A
and Exhibit B, (ii) to terminate certain rent and lease guarantees in favor of
Borrower from the parent companies of the lessees under the Original Subject
Leases, (iii) to terminate certain of the property management agreements for the
Affected Properties and to enter into the new property management agreements
(the "New Management Agreements") in the forms attached hereto as Exhibit C and
Exhibit D, for such Properties and (iv) 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 are hereinafter collectively referred to as the "Lease Restructuring").
The Lease Restructuring will leave in place and will not amend or modify in any
way the ▇▇▇▇▇/Prime Operating Lease, which governs the operation and management
of the properties listed in Schedule 1-C.
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.
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 Note has an unpaid principal balance of $95,360,668.77 as of
December 27, 2000; (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,
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 listed on Schedule 1-C attached hereto or the ▇▇▇▇▇/Prime
Operating Lease, which remains in full force and effect; (ix) the Properties
covered by the ▇▇▇▇▇/Prime Operating Lease have no separate property management
agreements associated therewith, but rather, the property management functions
are addressed in the ▇▇▇▇▇/Prime Operating Lease; (x) the Mortgages remain
cross-defaulted and all of the Properties cross- collateralize each other as
collateral for the 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 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 manner and otherwise in all
respects as therein provided, each as modified hereby; (iii) after termination
of the Original Subject 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, including without
limitation, the requirements of Section 9(d) of the Mortgages; (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, including the requirements of Sections 24(n) and 38 of the
Mortgages, as amended hereby; (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 Equity Inns
Partnership, L.P., a Tennessee limited partnership, 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 Original Subject 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
▇▇▇▇▇/Prime Operating Lease 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.
(3) 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 i
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.
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 the Guaranty, 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 Subject Property, as reflected on
Schedule 1-B, and (ii) the ▇▇▇▇▇/Prime Operating Lease for those Properties
listed on Schedule 1-C.
(b) New Management Agreements. References in any of the Loan
Documents to a "Management Agreement" or a "management agreement" shall refer,
respectively, to the two (2) New Management Agreements or the existing
management agreements for the particular Affected Properties described in
Sections 5, 6 and 13 of the Transaction Summary.
(c) Future Management Changes. Notwithstanding the provisions
of the Loan Documents, including Sections 24(n) and 38 of the Mortgages,
regarding Borrower's ability to change property managers for the Subject
Properties, Borrower shall have the right to enter into new management
agreements for some or all of the Affected Properties subject to the
restrictions and conditions set forth in Section 9 of the Transaction Summary,
but not otherwise. To the extent any such future management agreement with a
future property manager is approved consistent with the requirements of this
Agreement, from and after such approval, such property management agreement
shall become a "Management Agreement" under the Loan Documents and shall be
subject to the restrictions, covenants and other provisions of the Loan
Documents, as modified hereby.
(d) Notices. The addresses for the various notice parties set
forth in the Loan Documents, including without limitation, Section 43 of the
Mortgages, shall be modified as follows:
If to Borrower: EQI Financing Partnership II, L.P.
EQI/WV Financing Partnership, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Hunton & ▇▇▇▇▇▇▇▇
Riverfront Plaza, East Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
If to Lender: Norwest Bank Minnesota, National Association,
as trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS)- GMAC
Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 1999 C-3
and
LaSalle Bank National Association, as trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Securities Trust Services
Group - GMAC Commercial Mortgage Securities, Inc.,
Series 2000-C1
With a copy to: GMAC Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Servicing - Executive Vice President
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
If to New Tenant: ENN Leasing Company II, L.L.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. Silver
with a copy to: Hunton & ▇▇▇▇▇▇▇▇
Riverfront Plaza, East Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
(e) New Franchise Agreements. In all of the Loan Documents
which pertain to an Affected Property, references to a "Franchise Agreement" or
a "franchise agreement" shall refer to the franchise or license agreement for a
particular Affected Property, as described in the comfort letters attached
hereto as Exhibit H.
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. Conditions. This Agreement shall be of no force and effect until
each of the following conditions has been met, no later than January 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 E, the Manager's Consent and Subordination Agreements attached
hereto as Exhibit F and Exhibit G, the comfort letters from the hotel
franchisors attached hereto as Exhibit H and the new franchise/license
agreements referenced in such comfort letters, and the Lockbox Agreement notice
letters attached hereto as Exhibit I.
(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 partnership action; (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 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.
If any of the above conditions have not been met by January
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.
7. Consent to Transaction. Subject to the terms and conditions set
forth in this Agreement, Lender consents to the Lease Restructuring and to the
new franchise/license agreements referenced in the comfort letters attached
hereto as Exhibit H. 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
▇▇▇▇▇/Prime Operating Lease, any changes to the management of any of the
Properties, except as set forth in Section 4(c) above, and (except for those new
franchise agreements referenced in the comfort letters attached hereto as
Exhibit H) 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.
8. 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 conflit 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 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, 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 ▇▇▇▇▇/Prime 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.
9. Incorporation of Recitals. Each of the Recitals set forth above
in this Agreement are incorporated herein and made a part hereof.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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. 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.
17. 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.
18. 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.
19. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
20. Effective Date. This Agreement shall be effective as of the
Effective Date and thereupon shall be incorporated into the terms of the Loan
Documents.
List of Schedules and Exhibits Attached Hereto and Made a Part Hereof
---------------------------------------------------------------------
Schedule 1-A: List of all Properties
Schedule 1-B: List of Affected Properties, subject to the New Operating Leases
Schedule 1-B: List of Properties subject to the ▇▇▇▇▇/Prime Operating Lease
Schedule 2: Transaction Summary
Exhibit A: Consolidated Lease Agreement
Exhibit B: Lease Agreement
Exhibit C: New Management Agreement (Crossroads)
Exhibit D: New Management Agreement (Promus)
Exhibit E: Consolidated Lease Estoppel, Subordination and Attornment
Agreement
Exhibit F: Manager's Consent and Subordination (Crossroads)
Exhibit G: Manager's Consent and Subordination (Promus)
Exhibit H: Comfort Letters
Exhibit I: Direction Letters relating to Lockbox Agreement
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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 27 day
of December, 2000.
/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 27 day
of December, 2000.
/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 27 day
of December, 2000.
/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 27 day
of December, 2000.
/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 C-3
By: GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation,
as Master Servicer and Special Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Asst. Vice President
-------------------------------------
State of PA )
) SS.
County of ▇▇▇▇▇▇▇▇▇▇ )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Asst. 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 C-3, 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 22nd
day of December, 2000.
/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 C-1
By: GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation,
as Master Servicer and Special Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Asst. Vice President
-------------------------------------
State of PA )
) SS.
County of ▇▇▇▇▇▇▇▇▇▇ )
BEFORE ME, a Notary Public in and for said State and County personally
appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Asst. 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 C-1, 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 22nd
day of December, 2000.
/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 27 day
of December, 2000.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Notary Public
My commission expires: 12/1/02.
--------
SCHEDULE 1-A
ALL PROPERTIES
Security Instrument Properties
------------------- ----------
1. Mortgage, Assignment of Leases and 1. AmeriSuites hotel located
Rents, Security Agreement and Fixture at 9104 Keystone Crossing,
Filing ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. Mortgage, Assignment of Leases and 2. AmeriSuites hotel located
Rents, Security Agreement and Fixture at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
3. Open-End Mortgage, Assignment of 3. AmeriSuites hotel located
Leases and Rents, Security Agreement and at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Fixture Filing ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. Deed of Trust, Assignment of Leases and 4. AmeriSuites hotel located
Rents, Security Agreement and Fixture at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. Credit Line Deed of Trust, Assignment of 5. AmeriSuites hotel located
Leases and Rents, Security Agreement and at ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇
Fixture Filing 23060
6. Mortgage, Assignment of Leases and 6. Hampton Inn hotel located
Rents, Security Agreement and Fixture at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
7. Deed of Trust, Assignment of Leases and 7. Hampton Inn hotel located
Rents, Security Agreement and Fixture at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
8. Deed of Trust, Assignment of Leases and 8. Hampton Inn hotel located
Rents, Security Agreement and Fixture at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9. Deed of Trust, Assignment of Leases and 9. Hampton Inn hotel located
Rents, Security Agreement and Fixture at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Security Instrument Properties
------------------- ----------
10. Credit Line Deed of Trust, Assignment of 10. Hampton Inn hotel located
Leases and Rents, Security Agreement and at 1053 Van ▇▇▇▇▇▇▇ Road,
Fixture Filing ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. Leasehold Deed of Trust, Assignment of 11. Homewood Suites hotel
Leases and Rents, Security Agreement and located at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
12. Open-End Mortgage, Assignment of 12. Homewood Suites hotel
Leases and Rents, Security Agreement and located at ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
13. Deed of Trust, Assignment of Leases and 13. Homewood Suites hotel
Rents, Security Agreement and Fixture located at 4323 Spectrum
Filing One, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
14. Deed of Trust, Assignment of Leases and 14. Residence Inn hotel located
Rents, Security Agreement and Fixture at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
15. Mortgage, Assignment of Leases and 15. Residence Inn hotel located
Rents, Security Agreement and Fixture at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
16. Leasehold Mortgage, Assignment of 16. Residence Inn hotel located
Leases and Rents, Security Agreement and at ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Fixture Filing ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
17. Deed of Trust, Assignment of Leases and 17. Residence Inn hotel located
Rents, Security Agreement and Fixture at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
18. Mortgage, Assignment of Leases and 18. Hampton Inn hotel located
Rents, Security Agreement and Fixture at 20600 ▇▇▇▇▇▇▇▇ Road,
Filing ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
19. Mortgage, Assignment of Leases and 19. Residence Inn hotel located
Rents, Security Agreement and Fixture at ▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
SCHEDULE 1-B
NEW OPERATING LEASES
Properties
1. Hampton Inn hotel located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
2. Hampton Inn hotel located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
3. Hampton Inn hotel located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. Hampton Inn hotel located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. Residence Inn hotel located at ▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. Homewood Suites hotel located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
7. Homewood Suites hotel located at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8. Homewood Suites hotel located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9. Residence Inn hotel located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
10. Residence Inn hotel located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. Residence Inn hotel located at ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Residence Inn hotel located at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13. Hampton Inn hotel located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
14. Hampton Inn hotel located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
Note: With respect to No.'s 1 through 13, these Properties are subject to
one Consolidated Lease Agreement. No. 14 is subject to a separate Lease
Agreement.
SCHEDULE 1-C
▇▇▇▇▇/PRIME OPERATING LEASES
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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
--------------------------------------------------------------------------------
SCHEDULE 2
EQI Financing Partnership II, L.P. (AEQI@)
EQI/WV Financing Partnership, L.P. (AEQI/WV@)
$97, 020,000 Loan from GMAC Commercial Mortgage Corporation (AGMACCM@)
LESSEE RESTRUCTURING
TRANSACTION SUMMARY
Current Structure
1. Nineteen (19) Hotels are currently owned by EQI (18 Hotels) and EQI/WV
(one Hotel)
2. Six (6) of the Hotels are currently leased to Crossroads/Memphis
Financing Company II, L.L.C. ("Crossroads Memphis")
3. Eight (8) of the Hotels are currently leased to Crossroads/Future
Financing Company, L.L.C. ("Crossroads Future")
4. Five (5) of the Hotels are currently leased to and managed by ▇▇▇▇▇
Holding Corp., a wholly-owned subsidiary of Prime Hospitality
Corporation.
5. Three (3) of the Hotels are currently managed by Promus Hotels, Inc.
6. Eleven (11) of the Hotels are currently managed by Crossroads
Hospitality Company, L.L.C.
New Structure Effective January 2001
1. All Hotels continue under current ownership by EQI and EQI/WV.
2. The five (5) Hotels currently leased to and managed by ▇▇▇▇▇ Holding
Corp. will continue to be leased to and managed by ▇▇▇▇▇ Holding Corp.
3. Effective in January 2001, the existing leases with Crossroads Memphis
and Crossroads Future will terminate (14 Hotels). The existing guaranty
of the leases for these 14 Hotels also will terminate.
4. EQI will enter into a new consolidated lease for 13 Hotels with ENN
Leasing Company II, L.L.C., a single member Delaware limited liability
company ("ENN Leasing II") which will be an indirectly wholly-owned
subsidiary of Equity Inns, Inc. The form of new lease is attached
hereto as Exhibit A. EQI/WV will enter into a new lease with ENN
Leasing II with respect to the Morgantown, WV Hampton Inn. The form of
that new lease is attached as Exhibit B. The rent terms for the lease
for each Hotel will be identical to the current rent terms and will
reflect the CPI adjustments effective January 1, 2001.
5. ENN Leasing II will enter into a consolidated management agreement in
the form of Exhibit C with Crossroads Hospitality Company, L.L.C.
("Crossroads"), a wholly-owned subsidiary of Interstate Hotels
Corporation and an affiliate of Crossroads Memphis and Crossroads
Future, with respect to the following nine (9) hotels:
a. ▇▇▇▇▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
b. Residence Inn - Eagan, MN
▇. ▇▇▇▇▇▇▇ Inn - Morgantown, WV
d. Residence Inn - Tucson, AZ
▇. ▇▇▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇. ▇▇▇▇▇▇▇ Inn - Kansas City, MO
g. Residence Inn - Princeton, NJ
h. Homewood Suites - Sharonville, OH
i. Residence Inn - Portland, OR
6. ENN Leasing II will enter into two (2) separate management agreements,
each in the form of Exhibit D (other than as to Hotel identifying
information) with Promus Hotels, Inc., a wholly-owned subsidiary of
Hilton Hotels Corporation, with respect to the following two (2)
Hotels:
▇. ▇▇▇▇▇▇▇ Inn, Poplar - Memphis (Poplar), TN
▇. ▇▇▇▇▇▇▇ Inn - Richardson, TX
7. ENN Leasing II will hold the franchise license for each Hotel. Copies
of the franchisor comfort letters for the Hotels are attached as
Exhibit H.
8. The terms of the respective Management Agreements for the Hotels are
set forth below:
Management
Hotel Agreement Termination
----- ---------------------
a. ▇▇▇▇▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ 12/31/01
b. Residence Inn - Eagan, MN 05/31/06
▇. ▇▇▇▇▇▇▇ Inn - Morgantown, WV 12/31/04
d. Residence Inn - Tucson, AZ 12/31/05
▇. ▇▇▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ 12/31/02
▇. ▇▇▇▇▇▇▇ Inn - Kansas City, MO 12/31/02
g. Residence Inn - Princeton, NJ 12/31/01
h. Homewood Suites - Sharonville, OH 12/31/02
i. Residence Inn - Portland, OR 12/31/05
▇. ▇▇▇▇▇▇▇ Inn - Northville, MI 12/31/02
k. Homewood Suites - San Antonio, TX 09/27/06
l. Homewood Suites - Camelback, AZ 11/05/06
▇. ▇▇▇▇▇▇▇ Inn - Memphis (Poplar), TN 12/31/02
▇. ▇▇▇▇▇▇▇ Inn - Richardson, TX 12/31/02
The Management Agreements will provide for month-to-month extensions
following the term expiration if requested in writing by EQI or EQI/WV
to the manager prior to the applicable termination date.
9. ENN Leasing II will be permitted to enter into management agreements
with any of the Qualified Managers meeting the following definition
with the reasonable prior approval (with such approval not to be
unreasonably withheld) of GMACCM, the trustee, servicers and Ratings
Agencies (including "no downgrade" letters), provided that (a) the
management agreement is in reasonably acceptable form, including the
fees set forth therein, and satisfies the obligations of the operating
lease and loan documents with respect to subordination of management
fees, etc.; (b) the new manager enters into a consent and subordination
agreement, reasonably acceptable to Lender; (c) the applicable
franchisor has confirmed its approval of the new management agreement;
and (d) if the Qualified Manager (as defined below) is an affiliate of
EQI or EQI/WV, then (i) Lender receives confirmation that the new
manager is an "Eligible Independent Contractor" (as such term is
defined in the new leases attached as Exhibits A and B hereto), and
(ii) a new legal opinion shall be provided to Lender regarding
bankruptcy non-consolidation issues as to such new property manager.
"Qualified Manager" means either (i) any of the following
professional management entities, provided that there shall
have been no materially adverse change in any such entity
since the date hereof: Interstate Hotels Corporation Prime
Hospitality Corporation, Starwood Hotels and Resorts
Worldwide, Inc., Bass PLC, Crestline Hotels and Resorts, Inc.,
Marriott International, Inc., Meristar Hotels and Resorts,
Inc., RFS, Inc. or Hilton Hotels Corporation; or (ii) in the
reasonable judgment of Lender, a management organization
possessing experience in managing properties similar in size,
scope and value of the applicable Individual Property or
Properties, provided that Borrower shall have obtained prior
written confirmation from the applicable Rating Agencies that
management of the Property by such person or entity will not
cause a downgrading, withdrawal or qualification of the then
current rating of the Securities issued pursuant to the
Securitization of any class thereof.
The above capitalized terms shall have the following meanings:
"Borrower" means, collectively, EQI and EQI/WV.
"Individual Property" means all of the property, rights,
interests and estates now owned or hereafter acquired by
Borrower to each of the fourteen (14) parcels of real property
and the improvements thereon encumbered by a Mortgage as
described, together with all rights pertaining to such
property and improvements, as more particularly described in
the granting clauses of each such Mortgage.
"Lender" means GMAC Commercial Mortgage Corporation and its
successors and assigns, including any trustees to whom it has
transferred all or a portion of the Loan.
"Mortgage" means with respect to each Individual Property the
Mortgage, Assignment of Leases and Rents, Security Agreement
and Fixture Filing or the Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Fixture Filing, as
applicable, executed by Borrower in favor of Lender, covering
such Individual Property and any amendments, modifications,
renewals, substitutions or replacement thereof.
"Note" means the two Promissory Notes dated as of June 16,
1999, in the stated aggregate principal amount of $97,020,000,
executed by Borrower, and payable to the order of Lender in
evidence of the loan made under the Loan Agreement as the same
may hereafter be modified, amended, restated, renewed or
replaced
"Properties" means, collectively, the fourteen (14) Individual
Properties which are subject to the terms of the Loan
Agreement dated as of June 16, 1999 among Borrower and Lender,
and which are listed on Schedule 1-B to this Agreement.
"Rating Agencies" means each of Standard & Poor's, ▇▇▇▇▇'▇ and
Fitch, Inc., or any other nationally-recognized statistical
rating agency which has been approved by Lender.
"Securitization" means the sale and/or first successful
securitization of rated single or multi-class securities (the
"Securities") secured by or evidencing ownership interests in
the Note and the Mortgages
10. ENN Leasing II will enter into one or more new consolidated lease
estoppel, subordination and attornment agreements in the form of
Exhibit E.
11. New manager-lender agreements will be entered into among EQI and
EQI/WV, ENN Leasing II, and Crossroads and Promus Hotels, Inc., as
appropriate, in the form of Exhibits F (as to Crossroads) and G (as to
Promus Hotels, Inc.)
12. The transaction will also be documented by the execution of a Loan
Affirmation and Modification Agreement and by delivery of such legal
opinions as may be appropriate.
13. ENN Leasing II will assume the obligations of Crossroads/Memphis and
Crossroads Future under those existing management agreements between
Promus Hotels Inc., as manager, and Crossroads/Memphis and Crossroads
Future, as owner, relating to the following three (3) Hotels:
Hotel
-----
▇. ▇▇▇▇▇▇▇ Inn - Detroit, MI
b. Homewood Suites - Phoenix, AZ
c. Homewood Suites - San Antonio, TX
EXHIBITS
A. Form of lease between EQI, as lessor, and ENN Leasing II, as lessee
B. Form of lease between EQI/WV, as lessor, and ENN Leasing II, as lessee
(Hampton Inn - Morgantown, WV)
C. Form of Management Agreement between ENN Leasing II and Crossroads
Hospitality Company, L.L.C.
D. Form of Management Agreement between ENN Leasing II and Promus Hotels,
Inc.
E. Consolidated Lease Estoppel, Subordination and Attornment Agreement
F. Form of manager-lender agreement for Crossroads Hospitality Company,
L.L.C.
G. Form of manager-lender agreement for Promus Hotels, Inc.
H. New Franchise Licenses/Franchisor Comfort Letters
I. Lockbox notice letters