Exhibit 10.5
THE BORROWERS NAMED
HEREIN
(collectively, the Borrower)
and
▇▇▇▇▇▇ FINANCIAL CORPORATION
(Lender)
__________________________
LOAN AGREEMENT
__________________________
Dated: As of August 3, 1998
TABLE OF CONTENTS
Page
---------
1. The Note and the Security Instruments.............. 1
2. Loan Documents..................................... 1
3. Property Releases.................................. 2
4. Substitution of Properties......................... 6
5. Lock-box Account................................... 12
6. Replacements and Replacement Reserve............... 14
7. Required repairs; required repair funds............ 21
8. Events of Default.................................. 24
9. Sale of Notes and Securitization; Indemnification.. 24
10. Incorporation of Provisions........................ 26
12. Representations and Warranties..................... 26
13. Construction of Agreement.......................... 27
14. Parties Bound, Etc................................. 27
15. Waivers............................................ 27
16. Governing Law...................................... 27
17. Severability....................................... 28
18. Notices........................................... 28
19. Fees and Expenses.................................. 28
20. Modification....................................... 28
21. No Oral Agreements................................. 28
22. Definitions........................................ 28
23. Recourse........................................... 29
THIS LOAN AGREEMENT made as of the 3rd day of August, 1998 between the
undersigned borrowers listed on the signature pages hereto, each having an
office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ (hereinafter
referred to, individually and collectively, as the context may require, as a
"Borrower") and ▇▇▇▇▇▇ FINANCIAL CORPORATION, having an office at Three Bethesda
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as
"Lender");
W I T N E S S E T H :
WHEREAS, at the request of Borrower, Lender has agreed to fund to
Borrower a loan in the principal amount of $250,000,000 (the "Loan") pursuant to
the terms of this Agreement;
WHEREAS, the Loan is evidenced by that certain note of even date
herewith made by Borrower to Lender in the original principal amount of
$250,000,000 (the "Note") to be secured by sixteen (16) certain Mortgages, Deeds
of Trust, Deeds to Secure Debt and other real estate security instruments, as
the case may be, each of even date herewith, made by Borrower and each in the
amount of $250,000,000 (collectively, the "Security Instruments"), covering
sixteen (16) parcels of land more fully described in Schedule A attached hereto
and made a part hereof (individually, a "Parcel" and collectively, the
"Parcels");
WHEREAS, at the request of Borrower, Lender has agreed, among other
things, to (i) permit Borrower to release certain Properties (defined below)
from the lien of the Security Instruments and (ii) provide the establishment of
a lockbox account upon the occurrence of an Event of Default (defined herein)
under the Loan Documents (defined below).
NOW, THEREFORE, in consideration of ten dollars ($10) and other good
and valuable consideration, the receipt of which is hereby acknowledged, Lender
and Borrower hereby covenant and agree as follows:
1. The Note and the Security Instruments. The indebtedness of Borrower shall
-------------------------------------
be: (i) evidenced by the Note, and (ii) secured by, among other things, (a)
the Security Instruments made by Borrower covering the fee estate of
Borrower, in each Parcel, the Improvements (as such term is defined in the
Security Instruments) located on each Parcel and other property, rights and
interests of Borrower in the same (individually, a "Property" and
collectively, the "Properties"), and (b) assignments of leases and rents
each given by Borrower to Lender dated the date hereof and covering the
Properties (the "Assignments of Rents").
2. Loan Documents. The term "Loan Documents" as used in this Agreement shall
--------------
collectively mean the Note, the Security Instruments, the Assignments of
Rents, the Assignments of Agreements, Permits and Contracts, the
Environmental Indemnity Agreement, and the Conditional Assignment of
Management Agreement and Subordination of Management Fees, each dated the
date hereof between Borrower and Lender, this
1
Agreement and all other documents and instruments of any nature whatsoever
executed or delivered in connection with the Loan.
3. Property Releases. Subject to the terms and conditions set forth herein,
-----------------
Borrower shall have the right, from time to time, on any Payment Date (as
defined in the Note), or on any Business Day (as defined in the Note), to
obtain a release (a "Property Release") of a Property from the lien of the
related Security Instrument (i) provided that no default under this
Agreement, the Note, the Security Instruments or any other Loan Document
has occurred and is continuing and (ii) subject to compliance with the
provisions set forth below in this Section 3, legal, record, economic and
beneficial ownership of the Property for which a Property Release is being
requested (the "Release Premises") is simultaneously with the granting of
the Property Release transferred (a "Release Premises Transfer") to and
shall be owned immediately after such Property Release by a person(s),
party(ies) or entity(ies) other than Borrower, the Operating Tenant (as
defined in the Security Instruments) or any affiliate of Borrower or of any
Operating Tenant ("Release Premises Transferee"). In the event that the
Borrower seeks to release a Property from the lien of the related Security
Instrument, Lender shall release such Property from the lien of the related
Security Instrument and the Loan Documents, but only upon receipt by Lender
of the following:
(a) At least thirty (30) days but no more than ninety (90) days prior
written notice of Borrower's request to obtain a release of the Release Premises
in the form attached hereto as Exhibit A;
(b) A certificate of Borrower certifying the requirements set forth in
Paragraph 3(g) of this Loan Agreement shall be true after giving effect to such
transfer;
(c) At least five (5) Business Days' prior to such Property Release notice
of prepayment;
(d) A wire transfer of immediately available federal funds in an amount
equal to the sum of (i) one hundred twenty five percent (125%) of the Allocated
Loan Amount for the Release Premises as set forth on Schedule B attached hereto
(the "Release Amount") and (ii) all accrued and unpaid interest with respect to
the Release Amount and any other amounts owing to Lender in connection with the
Release Premises, including Breakage Costs, ( as defined in the Note) if any, as
set forth in Article 2, Section (c) of the Note;
(e) If applicable, all proposed documents related to the Release Premises
Transferee and such documents, certificates and assurances that Lender shall
reasonably request to evidence and confirm that the Release Premises is
simultaneously with the Property Release being transferred to a Release Premises
Transferee;
(f) Payment of all Lender's costs and expenses, including due diligence
review costs and reasonable counsel fees and disbursements incurred in
connection with the Property Release
2
and the review and approval of the documents and information required to be
delivered in connection therewith ("Property Release Expenses");
(g) Evidence satisfactory to Lender that the Aggregate Debt Service
Coverage Ratio (hereinafter defined) for the twelve (12) month period
immediately preceding the Property Release with respect to the Properties
remaining encumbered by the liens of the Security Instruments after giving
effect to the Property Release shall be equal to or greater than the greater of
(i) the Aggregate Debt Service Coverage Ratio with respect to all of the
Properties for the twelve (12) months immediately preceding the date hereof
(1.66 to 1.00; the "Origination DSCR") or (ii) the Aggregate Debt Service
Coverage Ratio with respect to all of the Properties then encumbered by the
liens of the Security Instruments immediately prior to such release, for the
twelve (12) months immediately preceding the second calendar month prior to the
date of the proposed Property Release (the "Current DSCR");
(h) If the Securities (as defined herein) are then rated by the Rating
Agencies (as defined in the Security Instruments), the written confirmation of
the Rating Agencies that the Property Release shall not result in a downgrade,
withdrawal or qualification of the then current ratings by the applicable Rating
Agencies of the Securities and otherwise in form and substance reasonably
satisfactory to Lender and its counsel; and
(i) If the Operating Lease for the Release Premises (as defined in the
related Security Instruments) has been terminated pursuant to Section 36.1 of
the Operating Lease, and, after giving effect to such Release, the Borrower that
owned the Release Premises prior thereto (the "Release Premises Transferor") is
the owner of a Property that remains encumbered by the lien of the Security
Instruments, an estoppel certificate from the Operating Tenant in form
satisfactory to Lender stating that the Operating Lease has been terminated and
that the Operating Tenant has released the Release Premises Transferor from all
liability for the payment of any and all termination payments or any other
payments due to the Operating Tenant pursuant to the terms of the Operating
Lease and that the Release Premises Transferor has no further liability or
obligation in connection with said Operating Lease or, if the Operating Lease on
the Release Premises has not been terminated, an estoppel certificate from the
Operating Tenant in form satisfactory to Lender that such Operating Lease, as it
relates to the Release Premises, is and will remain in full force and effect
following the Release Premises Transfer and that the Release Premises Transferor
has no liability for the payment of any termination payments or any other
payments due to the Operating Tenant pursuant to the terms of the Operating
Lease and that the Release Premises Transferor has no further liability or
obligation in connection with said Operating Lease.
The term "Aggregate Debt Service Coverage Ratio" shall mean the ratio
of (a) the sum of NOI (defined below) derived from the operation of each of the
Properties, including Rents and Accounts Receivable, other than the Release
Premises (if the calculation is being made in connection with a Property
Release) and any Property which has, prior to any particular Property Release,
been theretofore released, during the applicable period, to (b) the total Debt
Service (defined below) that would be payable under the Note for the applicable
period. For purposes of this calculation, "Debt Service" shall mean, for any
given period during the term of the Loan, an
3
amount equal to the aggregate amount of interest payable on the outstanding
principal balance of the Loan for such period, assuming an interest rate equal
to the greater of (i) 10.25% per annum or (ii) the Applicable Interest Rate (as
defined in the Note) for such period.
The term "NOI" as used herein shall mean, with respect to any
Property, for any given period, the Gross Income (defined below) for such
Property for such period less Expenses (hereinafter defined) attributable to
such Property for such period, as more particularly described on the operating
statements for the Property delivered by Borrower to Lender pursuant to the
Security Instruments. NOI shall include, only Rents and Accounts Receivable
actually received and earned in accordance with the Uniform System of Accounts
(as defined in the Security Instruments) and such other income, including any
rent loss or business interruption insurance proceeds, laundry, parking, vending
or concession income, late fees, forfeited security deposits and other
miscellaneous tenant charges and Expenses actually paid or payable on an accrual
basis attributable to such Property on an annualized basis during the applicable
period ending on the last day of the month that is two calendar months prior to
the month during which the NOI is being calculated, as set forth on operating
statements satisfactory to Lender. NOI shall be calculated on an accrual basis
in accordance with the Uniform System of Accounts (as defined in the Security
Instruments).
The term "Gross Income" as used herein shall mean with respect to any
Property for any given period the gross income derived from the operation of
such Property for such period, including Rents and Accounts Receivable.
Notwithstanding the foregoing, NOI shall not include (a) condemnation
or insurance proceeds (excluding rent or business interruption insurance
proceeds); (b) any proceeds from the sale, exchange, transfer, financing or
refinancing of all or any portion of the Property for which it is to be
determined, (c) amounts received from tenants as security deposits; or (d) any
other type of income otherwise includible in NOI but paid directly by any tenant
to a person or entity other than Borrower or Operating Tenant or their
respective agents or representatives, unless such amounts are included as an
Expense. For purposes of calculating NOI herein, Rent payable under the
Operating Lease shall not be included in the definition of Gross Income or
Expenses.
The term "Expenses" as used herein shall mean, with respect to any
Property, for any given period (and shall include the pro rata portion for such
period of all such expenses attributable to, but not paid during, such period),
all expenses as determined in accordance with the Uniform System of Accounts, by
Borrower or Operating Tenant under the Operating Lease, as applicable, during
that period in connection with the operation of such Property for which it is to
be determined, including without limitation:
A. expenses for cleaning, repair, maintenance, decoration and painting
of the Property (including, without limitation, parking lots and roadways), net
of any insurance proceeds in respect of any of the foregoing;
B. wages (including overtime payments), benefits, payroll taxes and
all other related expenses for Borrower's on-site personnel, up to and including
(but not above) the level
4
of the on-site manager, engaged in the repair, operation and maintenance of the
Property and service to tenants and on-site personnel engaged in audit and
accounting functions performed by Borrower;
C. management fees equal to the greater of (i) the management fee
pursuant to the Management Agreement (as defined in the Security Instruments)
and (ii) four percent (4%) of Gross Income. Such fees shall include all fees
for management services whether such services are performed at such Property or
off-site;
D. franchise fees, reservation fees and other royalties or similar
payments equal to the greater of (i) such fees and payments due under the
Franchise Agreement (as defined in the Security Instruments) and (ii) five
percent (5%) of Gross Income;
E. the cost of all electricity, oil, gas, water, steam, heat,
ventilation, air conditioning and any other energy, utility or similar item and
the cost of building and cleaning supplies;
F. the cost of any leasing commissions and tenant concessions and
improvements payable by Borrower pursuant to any Leases which are in effect for
such Property during such period as such amounts are recognized in accordance
with the Uniform System of Accounts, provided however that in no event less than
on a straight line basis during the remaining respective base term (excluding
extension, renewal or other option);
G. Insurance Premiums (as defined in the Security Instruments);
H. legal, accounting and other professional fees and expenses;
I. the cost of all equipment to be used in the ordinary course of
business, which is not capitalized in accordance with the Uniform System of
Accounts;
J. Taxes and Other Charges (as such terms are defined in the Security
Instruments);
K. advertising and other marketing costs and expenses;
L. casualty losses to the extent not reimbursed by a third party;
M. all amounts that are reserved for hereunder and the Security
Instruments, including those funds which are deposited into the Replacement
Reserve Account or would be required to be deposited in the Replacement Reserve
Account in the event the Replacement Reserve Account is not yet established;
N. all amounts that are required to be reserved for under the
Operating Lease, including the Capital Expenditure Reserve (as defined in the
Operating Lease), to the extent such amounts are not duplicative of the amounts
set forth in clause (M) above; and
5
O. a furniture, fixtures and equipment reserve equal to the greater of
(i) such reserves required under the Management Agreement and the Franchise
Agreement and (ii) five percent (5%) of Gross Income, to the extent such amounts
are not duplicative of the amounts set forth in clause (M) above.
Notwithstanding the foregoing, Expenses shall not include (i) depreciation
or amortization or any other non-cash item of expense unless approved by Lender;
(ii) interest, principal, fees, costs and expense reimbursements of Lender in
administering the Loan but not in exercising any of its rights under this
Agreement or the other Loan Documents; or (iii) any expenditure (other than
leasing commissions, tenant concessions and improvements and replacement
reserves) which is properly treatable as a capital item under the Uniform System
of Accounts.
4. Substitution of Properties. Provided that no Event of Default has occurred
--------------------------
and is continuing, Borrower shall have the right to obtain a release of one
or more of the Properties from the lien of the related Security Instrument
and Loan Documents (a "Substitution Release") upon substitution of another
fully licensed and operating hospitality property of comparable type and
quality as the Property being released in the place of the Release Premises
(a "Substitute Property") owned in fee simple (or leasehold) by a Borrower
and leased to the Operating Tenant pursuant to an operating lease,
substantially in the same form and content as the Operating Lease, and such
Substitute Property is subjected to the lien of a new mortgage, deed of
trust, deed to secure debt or similar security instruments, in the same
form and substance as the Security Instruments ("Substitute Security
Instrument") and to the lien of the Loan Documents, as a first lien thereon
and managed by Manager (or an affiliate of Manager as provided for in the
Management Agreement) pursuant to the terms of the Management Agreement or
a Replacement Management Agreement (as defined in the Security Instruments)
and, subject to a Franchise Agreement in compliance with the terms and
conditions of Section 3.13 of the Security Instruments and upon compliance
with and subject to the conditions set forth in this Section 4; provided,
however, that Borrower's rights to such release and substitution shall be
conditioned on receipt by Lender of the following:
(a) evidence which would be satisfactory to a prudent institutional
mortgage lender that title to the Release Property has been transferred to a
Release Premises Transferee.
(b) evidence which would be satisfactory to a prudent institutional
mortgage lender that the Substitute Property is fully operational and is of
similar or higher quality or value to the Release Premises.
(c) a current Appraisal of the Substitute Property prepared within one
hundred eighty (180) days prior to the release and substitution showing (1) an
appraised value equal to or greater than the appraised value of the Release
Premises as of the date hereof; and (2) an aggregate loan-to-value ratio with
respect to the Properties remaining subject to the lien of the Security
Instruments after the Substitution Release not greater than the ratio equal to
the lesser of (A) the aggregate loan-to-value ratio as of the date hereof with
respect to the Properties as set forth on
6
Schedule B attached and (B) the aggregate loan-to-value ratio with respect to
the Properties remaining subject to the lien of the Security Instruments
immediately prior to the proposed Substitution Release.
(d) an opinion of the related Borrower's counsel which would be
satisfactory to a prudent institutional mortgage lender stating that (i) the
Substitute Security Instrument and the Loan Documents by which the Substitute
Property will be encumbered have been duly authorized, executed and delivered by
such Borrower and are valid and enforceable in accordance with their terms,
subject to bankruptcy and equitable principles, (ii) the related Borrower and
Operating Tenant are qualified to do business and in good standing under the
laws of the jurisdiction where the Substitute Property is located, or that such
Borrower, are not required by Applicable Law (defined in the Security
Instruments) to qualify to do business in such jurisdiction, and (iii) based
solely on a certificate of the related Borrower the encumbrance of the
Substitute Property with the lien of the Substitute Security Instrument and the
Loan Documents shall not cause a breach of, or a default under any agreement,
document or instrument to which such Borrower is a party or to which it or its
properties are bound or affected.
(e) a certification by the related Borrower that (x) the certificates,
opinions and other instruments which have been or are therewith delivered to or
deposited with Lender in connection with such release and substitution conform
to the requirements of this Agreement and the Security Instruments, (y) all
conditions precedent herein have been complied with and (z) all conditions
precedent to the delivery of the Substitute Security Instrument and Loan
Documents contained in this Agreement have been fulfilled.
(f) original executed counterparts of the Substitute Security Instrument
and the Loan Documents encumbering the Substitute Property and the related
operating lease and related collateral, including without limitation, any
financing statements or other documents necessary to grant or perfect Lender's
first priority security interest in the Personal Property (defined in the
Security Instruments) located thereon and the Rents and Accounts Receivable
derived therefrom; the principal amount of such Substitute Security Instrument
shall equal the face amount of the Note, provided that in the event that the
jurisdiction in which the Substitute Property is located imposes a mortgage
recording intangibles or similar tax, and does not permit the allocation of
indebtedness for the purpose of determining the amount of such tax payable, the
principal amount of such Substitute Security Instrument shall equal 125% of the
Substitute Allocated Loan Amount (defined below).
(g) a title insurance policy issued by a title insurance company
satisfactory to the Rating Agencies (or, if a Securitization has not occurred,
to Lender) insuring the lien of the Substitute Security Instrument on the
Substitute Property(ies), in form and substance which would be satisfactory to a
prudent institutional mortgage lender insuring that the Substitute Security
Instrument is a valid and enforceable first lien on the good and marketable fee
simple or leasehold estate, title of the related Borrower to the Substitute
Property in an amount equal to the amount of the Loan allocated to the
Substitute Property (the "Substitute Allocated Loan Amount"), subject only to
standard and customary exceptions and such other exceptions that would be
approved by a prudent institutional mortgage lender, together with such
affirmative insurance and other
7
endorsements customarily required by a prudent institutional mortgage lender,
including a "tie-in" and first loss endorsement satisfactory to Lender, or, if
such endorsement is not available in the state in which the Substitute Property
is located, insurance in an amount equal to the greater of one hundred twenty
five percent (125%) of the Substitute Allocated Loan Amount or the amount on
which mortgage or intangibles tax was paid with respect to the Security
Instrument for the Substitute Property, together with a "last dollar
endorsement". Such title insurance policy shall not contain any exception for
any state of facts that an accurate survey might show or that a survey made
after the date of the survey referred to in Section 4(l) might show.
(h) If the Operating Lease for the Release Premises has been terminated
pursuant to Section 36.1 of the Operating Lease, and, after giving effect to
such Release, the Release Premises Transferor is the owner of a Property that
remains encumbered by the lien of the Security Instruments, an estoppel
certificate from the Operating Tenant in form satisfactory to Lender stating
that the Operating Lease has been terminated and that the Operating Tenant has
released the Release Premises Transferor from all liability for the payment of
any and all termination payments or any other payments due to the Operating
Tenant pursuant to the terms of the Operating Lease and that the Release
Premises Transferor has no further liability or obligation in connection with
said Operating Lease or, if the Operating Lease on the Release Premises has not
been terminated, an estoppel certificate from the Operating Tenant in form
satisfactory to Lender that such Operating Lease, as it relates to the Release
Premises, is and will remain in full force and effect following the Substitution
Release and that the Release Premises Transferor has no liability for the
payment of any termination payments or any other payments due to the Operating
Tenant pursuant to the terms of the Operating Lease and that the Release
Premises Transferor has no further liability or obligation in connection with
said Operating Lease.
(i) evidence which would be satisfactory to a prudent institutional
mortgage lender to the effect that the Substitute Property and the use thereof
are in substantial compliance with the applicable zoning, subdivision, and all
other applicable federal, state or local laws and ordinances affecting the
Substitute Property, and that all material building and operating licenses and
permits necessary for the use and occupancy of the Substitute Property as a
hospitality property or hotel including, but not limited to, current
certificates of occupancy, have been obtained and are in full force and effect.
(j) an environmental report dated within six (6) months prior to delivery
which states that the Substitute Property does not contain any Hazardous
Substances in violation of Applicable Law (as defined in the Security
Instruments) or material risk of contamination from off-site Hazardous
Substances.
(k) payment of all costs and expenses incurred by Lender including
reasonable counsel fees and disbursements in connection with the release of any
Release Premises and the inclusion of the Substitute Property as collateral, all
recording charges, filing fees, taxes, or other expenses, including but not
limited to intangibles taxes and documentary stamp taxes in connection with the
recording of the Substitute Security Instruments and the lien necessary to grant
and perfect Lender a first priority lien on and security interest in the
Substitute Property, the Personal Property located therein and the Rents derived
therefrom. In the event that the jurisdiction in which the
8
Substitute Property is located imposes a mortgage recording or intangibles tax,
or similar tax, and does not permit the allocation of indebtedness for the
purpose of determining the amount of such tax payable, if permitted by
applicable law in such jurisdiction, such tax shall be paid on an amount equal
to 125% of the Substitute Allocated Loan Amount.
(l) a recent survey of the Substitute Property(ies) prepared by a land
surveyor licensed in the state where the Substitute Property is located pursuant
to the then current American Land Title Association/American Congress of
Surveying and Mapping standards for title surveys and which would be otherwise
satisfactory to a prudent institutional mortgage lender, provided that no
structural additions to the improvements shown on such survey or new structures
have been made or built since the date of such survey and that there has been no
change in the legal description of the Substitute Property since the date of
such survey, whether due to sales, transfers, condemnation or otherwise.
(m) evidence indicating whether the Substitute Property is located within a
flood plain.
(n) a property inspection report dated within six (6) months of delivery
prepared by an independent licensed engineer approved by Lender, prepared in
accordance with standards employed by prudent institutional mortgage lenders
stating, among other things, that the Substitute Property is in good condition
and repair and free of material damage or waste and complies in all material
respects with the Americans with Disabilities Act, or which otherwise reveals a
state of fact that would be satisfactory to a prudent institutional mortgage
lender and provided that adequate reserves satisfactory to Lender and the Rating
Agencies are established.
(o) annual operating statements and occupancy statements for the Substitute
Property for the recent fiscal year of the owner thereof, together with a year
to date operating statement, current occupancy statements, and a budget for the
current fiscal year, each certified by the related Borrower, and a certificate
of no adverse change since the date thereof executed by the related Borrower, in
each case in a form and substance which would be satisfactory to a prudent
institutional mortgage lender.
(p) original certificates and copies of policies of insurance required by
Lender under the terms of the Substitute Security Instrument for the Substitute
Property.
(q) evidence of the qualification and good standing of the related Borrower
and Operating Tenant (and the principals, if necessary) in the state where the
Substitute Property is located unless such qualification is not required in such
state by Applicable Law.
(r) certified copies of all Leases (as defined in the Substitute Security
Instrument) with respect to the Substitute Property and tenant estoppel
certificates from tenants under Material Leases, as required by Lender, all in a
form and substance which would be satisfactory to a prudent institutional
mortgage lender.
(s) certified copies of all material contracts and agreements relating to
the management, leasing and operation of the Substitute Property, including,
without limitation, the Franchise
9
Agreement and Management Agreement, each of which shall be in a form and
substance which would be satisfactory to a prudent institutional mortgage lender
in a transaction of similar type and which comply with the terms and conditions
of Section 3.13 of the Security Instruments.
(t) certified copies of all material consents, licenses and approvals, if
any, required in connection with the substitution of a Substitute Property,
including liquor licenses and evidence that such consents, licenses and
approvals are in full force and effect or, in the event that a liquor license
cannot be issued to Borrower until Borrower has acquired title to the Substitute
Property or to the Operating Tenant until the Operating Tenant has taken
possession of the Substitute Property under the related Operating Lease,
certified copies of a temporary liquor license or concession arrangement that is
in full force and effect that permits the sale and consumption of liquor and
alcoholic beverages at the Substitute Property.
(u) a certificate by the related Borrower and the other Borrowers
certifying that all of the representations and warranties contained in the
Security Instruments and in the other Loan Documents, after giving effect to the
substitution of the Substitute Property, are true and correct in all material
respects with respect to the Substitute Property and that there is no Event of
Default hereunder.
(v) a certificate of the related Borrower and the other Borrowers
certifying, together with other evidence that would be satisfactory to a prudent
institutional mortgage lender that, after the substitution of a Substitute
Property and the release of the Release Premises, (i) the Aggregate Debt Service
Coverage Ratio for the twelve (12) month period immediately preceding the
calendar month prior to the date of the Substitution Release with respect to all
Properties remaining subject to the lien of the Security Instruments shall be
equal to or greater than (A) the Origination DSCR, and (B) the Current DSCR and
(ii) the Debt Service Coverage Ratio (defined in the Substitute Security
Instrument) for the twelve month period immediately preceding the Substitution
Release with respect to the Substitute Property is equal or greater than the
Debt Service Coverage Ratio at origination with respect to the Release Premises
being replaced by the Substitute Property.
(w) UCC Searches with respect to the Substitute Property and the related
Borrower in the state where the Substitute Property is located and the
jurisdictions where such person has its principal place of business.
(x) a franchisor estoppel and recognition letter from the franchisor under
the Franchise Agreement for the Substitute Property in a form and substance that
would be satisfactory to a prudent institutional mortgage lender.
(y) a certified copy of (i) the operating lease for the Substitute Property
between the related Borrower and Operating Tenant or (ii) an amendment to the
Operating Lease to include the Substitute Property, in either case in a form and
substance that would be satisfactory to a prudent institutional mortgage lender,
together with a Subordination, Non-Disturbance and Attornment Agreement with
respect to such operating lease.
10
(z) a certified copy of (i) the management agreement for the Substitute
Property between Operating Tenant and Manager or (ii) an amendment to the
Management Agreement to include the Substitute Property, in either case in a
form and substance that would be satisfactory to a prudent institutional lender
together with an Assignment of Management Agreement and Subordination of
Management Fees in the same form and substance as with respect to the Release
Premises.
(aa) a certificate of the related Borrower dated the date of the
substitution, certifying (i) the names and true signatures of the incumbent
officers of such person authorized to sign the applicable Loan Documents, (ii)
the by-laws of such person as in effect on the date of the substitution of the
Substitute Property, (iii) the resolutions of such person's board of directors
approving and authorizing the execution, delivery and performance of all Loan
Documents executed by such person, and (iv) that there have been no changes in
the certificate of incorporation of such person since the date of the most
recent certification thereof by the appropriate Secretary of State.
(bb) certified copies of the most recent quality assurance reports or
similar reports of inspection or compliance from the franchisor under any
Franchise Agreement or Management Agreement (the "Quality Assurance Reports"),
if any.
(cc) if the related Borrower owns a leasehold estate in the Substitute
Property, (i) a certified copy of the Ground Lease for the Substitute Property,
together with all amendments and modifications thereto and a recorded memorandum
thereof, which Ground Lease would be satisfactory in all respects to a prudent
institutional mortgage lender and which contains customary leasehold mortgagee
provisions and protections, and which shall provide, among other things, (A) for
a remaining term of no less than 10 years from the Maturity Date, (B) that the
Ground Lease shall not be terminated until Lender has received notice of a
default thereunder and has had a reasonable opportunity to cure or complete
foreclosure, and fails to do so in a diligent manner, (C) for a new lease on the
same terms to the Lender as tenant if the Ground Lease is terminated for any
reason, (D) the non-merger of fee and leasehold interests, and (E) that
insurance proceeds and condemnation awards (from the fee interest as well as the
leasehold interest) will be applied pursuant to the terms of the Substitute
Security Instrument, and (ii) a ground lease estoppel executed by the fee owner
and ground lessor of the Substitute Property, acceptable to Lender.
(dd) if a Securitization has occurred, an opinion of the related Borrower's
counsel reasonably satisfactory to Lender stating, among other things, that the
tax qualification and status of the REMIC will not be adversely affected or
impaired as a result of the substitution of the Substitute Property.
(ee) such other certificates, opinions, documents and instruments relating
to the substitution reasonably requested by Lender, its counsel or the Rating
Agencies, and all corporate and other proceedings and all other documents
(including, without limitation, all documents referred to herein and not
appearing as exhibits hereto) and all legal matters in connection with the
substitution shall be satisfactory in form and substance to Lender in its
reasonable discretion.
11
(ff) if a Securitization has occurred, written confirmation from the Rating
Agencies that the substitution of the Substitute Property for the related
Release Premises shall not result in a withdrawal, downgrade or qualification of
the then current ratings by the applicable Rating Agencies of the Securities and
otherwise in form and substance satisfactory to Lender and its counsel.
(gg) the aggregate Allocated Loan Amounts applicable to the total number of
Release Premises which shall be the subject of any Substitution Release pursuant
to this Section shall not exceed $83,500,000.00.
Simultaneously with compliance of the conditions set forth above in
this Section 4, Lender shall (i) release the lien of the related Security
Instrument with respect to the Release Premises being replaced with the
Substitute Property, and (ii) adjust the Allocated Loan Amounts as Lender deems
reasonably necessary to incorporate the Substitute Allocated Loan Amount.
Upon the substitution of a Substitute Property in accordance with the
terms and conditions of this Section 4, such Substitute Property shall be deemed
a Property, and the Substitute Allocated Loan Amount shall be deemed an
Allocated Loan Amount for all purposes under this Agreement.
5. Lock-box Account.
----------------
(a) Upon the occurrence and continuance of an Event of Default, Borrower
shall establish and maintain a segregated Eligible Account (defined below) (the
"Lockbox Account") to be held by Lender, which Lockbox Account shall be under
the sole dominion and control of Lender. Borrower hereby grants to Lender a
first priority security interest in the Lockbox Account and all deposits at any
time contained therein and the proceeds thereof and will take all actions
necessary to maintain in favor of Lender a perfected first priority security
interest in the Lockbox Account, including, without limitation, executing and
filing UCC-1 Financing Statements and continuations thereof. Borrower will not
in any way alter or modify the Lockbox Account and will notify Lender of the
account number thereof. Lender and Servicer shall have the sole right to make
withdrawals from the Lockbox Account and all costs and expenses for establishing
and maintaining the Lockbox Account shall be paid by Borrower.
(b) Upon the establishment of the Lockbox Account, Borrower shall, or shall
cause the Operating Tenant to, deposit the Rent under the Operating Lease
directly into the Lockbox Account, and, if the Operating Lease has been
terminated and there is no Replacement Operating Lease (as defined in the
Security Instruments), and with respect to the Office portion of the Property
identified as the Radisson, in Chicago, Illinois, Borrower shall, or shall cause
each Manager (as defined in the Security Instruments), to deliver written
instructions to all tenants under Leases and credit card companies to deliver
all Rents and Accounts Receivable payable thereunder directly to the Lockbox
Account. Borrower shall, and shall cause each Manager, to deposit all amounts
received by Borrower or Manager constituting Rents and Accounts Receivable into
the Lockbox Account within one (1) Business Day of receipt thereof.
12
(c) All funds on deposit in the Lockbox Account shall be applied by Lender
to the payment of any amounts then due and payable under the Loan Documents in
such order and priority as Lender in sole discretion shall determine.
(d) The insufficiency of funds on deposit in the Lockbox Account shall not
absolve Borrower of the obligation to make any payments, as and when due
pursuant to this Agreement and the other Loan Documents, and such obligations
shall be separate and independent, and not conditioned on any event or
circumstance whatsoever.
(e) The following capitalized terms shall have the meanings set forth
below:
"Eligible Account" shall mean shall mean a separate and identifiable
----------------
account from all other funds held by the holding institution that is either (i)
an account or accounts maintained with a federal or state-chartered depository
institution or trust company which complies with the definition of Eligible
Institution (defined below) or (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity which, in the case of a state chartered
depository institution or trust company is subject to regulations substantially
similar to 12 C.F.R. (S)9.10(b), having in either case a combined capital and
surplus of at least Fifty Million and No/100 Dollars ($50,000,000) and subject
to supervision or examination by federal and state authority. An Eligible
Account will not be evidenced by a certificate of deposit, passbook or other
instrument.
"Eligible Institution" shall mean a depository institution or trust
--------------------
company the short term unsecured debt obligations or commercial paper of
which are rated at least A-1 by Standard & Poor's Ratings Group, P-1 by
▇▇▇▇▇'▇ Investors Service, Inc., D-1 by Duff & ▇▇▇▇▇▇ Credit Rating Co. and
F-1+ by Fitch Investors Service, L.P. in the case of accounts in which
funds are held for thirty (30) days or less (or, in the case of accounts in
which funds are held for more than thirty (30) days, the long term
unsecured debt obligations of which are rated at least "AA" by Fitch
Investors Service, L.P., Duff & ▇▇▇▇▇▇ Credit Rating Co. and Standard &
Poor's Ratings Group and "Aaa" by ▇▇▇▇▇'▇ Investors Service, Inc).
6. Replacements and Replacement Reserve.
------------------------------------
(a) Commencing on the First Payment Date and on each Payment Date
thereafter, Borrower shall pay to Lender one twelfth of the amount (the
"Replacement Reserve Monthly Deposit") equal to two (2) percent (2%) of the
Gross Income for the Properties projected by Lender for the current calendar
year, to be applied to maintain and replace the furniture, fixtures and
equipment used in connection with the operation of each Property, including
those items as set forth in the Approved Capital Budget (as defined in the
Security Instruments) for each Property (collectively, the "Replacements"), and
amounts so deposited shall hereinafter be referred to as the "Replacement
Reserve Fund". Lender will maintain the Replacement Reserve Fund in a
segregated account (the "Replacement Reserve Account") and the Replacement
Reserve Fund shall be invested and reinvested by Lender, at Borrower's
direction, in one or more Eligible Investments, subject to the following
restrictions: (A) such Eligible Investments and the proceeds
13
thereof shall be deemed a part of the Replacement Reserve Fund; (B) each such
Eligible Investments shall be made in the name of Lender (in its capacity as
such) or in the name of a nominee of Lender under its complete and exclusive
dominion and control or, if applicable law provides for perfection of pledges of
an instrument not evidenced by a certificate or other instrument through
registration of such pledge on books maintained by or on behalf of the issuer of
such investment, such pledge may be so registered; (C) Lender shall have the
sole control over such investment, the income thereon and the proceeds thereof;
(D) other than investments described in clause (B) above, any certificate or
other instrument evidencing such investment shall be delivered directly to
Lender or its agent; (E) the proceeds of each investment shall be remitted by
the purchaser thereof directly to Lender and (F) Lender shall not be liable for
any loss sustained on the investment of any funds constituting a part of the
Replacement Reserve Fund.
(b) Borrower hereby grants a first priority security interest to Lender, as
security for payment of all sums due under the Loan and the performance of all
other terms, conditions and provisions to be paid and performed, of all
Borrower's right, title and interest in and to the Replacement Reserve Fund and
the Replacement Reserve Account and shall execute and deliver to Lender such
UCC-1 Financing Statements and other documents or instruments as Lender may
request in order to grant and perfect such security interest. Borrower shall
not, without obtaining the prior written consent of Lender, further pledge,
assign or grant any security interest in the Replacement Reserve Fund or the
Replacement Reserve Account or permit any lien or encumbrance to attach thereto,
or any levy to be made thereon, or any UCC-1 Financing Statements, except those
naming Lender as the secured party, to be filed with respect thereto. Upon the
occurrence of an Event of Default, Lender may apply any sums then present in the
Replacement Reserve Fund to the payment of the Debt (as defined in the Security
Instruments) in any order in its sole discretion. Until expended or applied as
above provided, the Replacement Reserve Fund shall constitute additional
security for the Debt.
(c) (i) After the commencement of Borrower's obligation to make the
Replacement Reserve Monthly Deposit pursuant to Section 6(a), Lender shall make
disbursements from the Replacement Reserve Account to pay Borrower only for
Replacements. Lender shall not be obligated to make disbursements from the
Replacement Reserve Account to pay for or to reimburse Borrower for the costs of
routine maintenance (other than the regular replacement of furniture, fixtures
and equipment constituting Replacements or as permitted pursuant to Section 6(e)
hereof.) to an individual Property or for costs which are to be reimbursed from
the Required Repair Fund (as such term is defined in Section 7 of this
Agreement.
(ii) Lender shall, upon written request from Borrower and satisfaction
of the requirements set forth in Section 6(a) and Section 6(b) of this
Agreement, disburse to Borrower amounts from the Replacement Reserve
Account to pay for the actual approved costs of Replacements or to
reimburse the Borrower therefor in accordance with the Approved Annual
Budget within ten (10) days of Lender's receipt of a request for
disbursement in accordance with Section 6(d). In no event shall Lender be
obligated to disburse funds from the Replacement Reserve Account if an
Event of Default exists.
14
(d) Each request for disbursement from the Replacement Reserve Account
shall be in a form specified or approved by Lender and shall certify as to the
following matters: (i) the specific Replacements for which the disbursement is
requested, (ii) the amounts requested are for the costs of such Replacements
that have been paid or incurred since the immediately preceding request; (iii)
the Replacement for which the disbursement is requested is a Capital Expenditure
(as defined in the related Operating Lease) that is a permitted expenditure on
the current Approved Capital Budget, (iv) the amount requested is less than or
equal to the amount budgeted for such Replacement in the current Approved
Capital Budget, (v) that all Replacements that were the subject of the prior
request for disbursement have been made in substantial accordance with all
applicable Legal Requirements (defined below) of any Governmental Authority
(defined below) having jurisdiction over the applicable Individual Property to
which the Replacements are being provided and the cost of such Replacements has
been paid in full. Each request for disbursement shall include a statement
setting forth in reasonable detail the persons or entities to which payments
were made for the Replacements that were the subject of the prior request for
disbursement, together with evidence reasonably satisfactory to Lender of
payment of all such amounts for which the prior request for disbursement was
made, which evidence may include copies and paid invoices and lien waivers.
Prior to Borrower's making of the initial Replacement Reserve Monthly Deposit in
accordance with Section 6(a) or thereafter with respect to any calendar month
during which a request for disbursement from the Replacement Reserve Fund is not
submitted to Lender pursuant to this Section 6(d), Borrower shall deliver to
Lender, as a part of the monthly reports to be delivered pursuant to Section
3.11 of the Security Instruments an Officer's Certificate setting forth the
amounts paid during the preceding calendar month for Replacements and setting
forth each person to whom such amounts were paid, the amount paid to each such
person and the related Replacement provided by each such person.
(e) In the event that Borrower requests a disbursement from the Replacement
Reserve Account to pay or reimburse Borrower for labor or materials for
replacements other than Replacements as defined in Section 6.1(a) above,
Borrower shall disclose in writing to Lender why funds in the Replacement
Reserve Account should be used to pay or reimburse Borrower for such
replacements. If Lender determines that, (i) costs for such replacements are
reasonable, (ii) the funds in the Replacement Reserve Account are sufficient to
pay for such replacements, and (iii) all other conditions for disbursement under
this Agreement have been met, Lender shall disburse funds from the Replacement
Reserve Account for such replacements in accordance with the conditions set
forth in this Section 6..
(f) Borrower shall not make a request for disbursement from the Replacement
Reserve Account more frequently than once in any calendar month and (except in
connection with the final disbursement) the total cost of all Replacements in
any request shall not be less than Fifteen Thousand and No/Dollars ($15,000).
(g) Borrower shall make Replacements when required in order to keep each
individual Property in condition and repair consistent with other first class,
full service hotel or first class, full service hotel and office properties, as
applicable, in the same market segment and under the same franchisor in the
metropolitan area in which the respective individual Property is located, and to
keep each individual Property or any portion thereof from deteriorating.
Borrower shall
15
complete all Replacements in a good and workmanlike manner as soon as
practicable following the commencement of making each such Replacement.
(h) Lender reserves the right, at its option, to approve all material
contracts or work orders with materialmen, mechanics, suppliers, subcontractors,
contractors or other parties providing labor or materials in connection with the
Replacements. Upon Lender's request, Borrower shall assign any contract or
subcontract to Lender.
(i) In the event Lender determines in its reasonable discretion that any
Replacement is not being performed in a workmanlike or timely manner or that any
Replacement has not been completed in a workmanlike or timely manner, Lender
shall have the option to withhold any further disbursements from the Replacement
Reserve Account and, upon ten (10) days prior written notice, to proceed under
existing contracts or to contract with third parties to complete such
Replacement and to apply the Replacement Reserve Fund toward the labor and
materials necessary to complete such Replacement and, without providing any
prior notice to Borrower, to exercise any and all other remedies available to
Lender upon an Event of Default hereunder.
(j) In order to facilitate Lender's completion or making of the
Replacements pursuant to Section 6(i) above, Borrower grants Lender the right,
exercisable upon prior written notice to Borrower and during business hours or
such other reasonable time, to enter onto any individual Property and perform
any and all work and labor necessary to complete or make the Replacements and/or
employ watchmen to protect such Individual Property from damage. All sums so
expended by Lender shall be deemed to have been advanced under the Loan to
Borrower and secured by the Security Instruments. For this purpose Borrower
constitutes and appoints Lender its true and lawful attorney-in-fact with full
power of substitution to complete or undertake the Replacements in the name of
Borrower. Such power of attorney shall be deemed to be a power coupled with an
interest and cannot be revoked. Borrower empowers said attorney-in-fact as
follows: (i) to use any funds in the Replacement Reserve Account for the
purpose of making or completing the Replacements; (ii) to make such additions,
changes and corrections to the Replacements as shall be necessary or desirable
to complete the Replacements; (iii) to employ such contractors, subcontractors,
agents, architects and inspectors as shall be required for such purposes; (iv)
to pay, settle or compromise all existing bills and claims which are or may
become liens against any individual Property, or as may be necessary or
desirable for the completion of the Replacements, or for clearance of title; (v)
to execute all applications and certificates in the name of Borrower which may
be required by any of the contract documents; (vi) to prosecute and defend all
actions or proceedings in connection with any individual Property or the
rehabilitation and repair of any individual Property; and (vii) to do any and
every act which Borrower might do in its own behalf to fulfill the terms of this
Agreement.
(k) Nothing in this Section 6 shall: (i) make Lender responsible for making
or completing the Replacements; (ii) require Lender to expend funds in addition
to the Replacement Reserve Fund to make or complete any Replacement; (iii)
obligate Lender to proceed with the Replacements; or (iv) obligate Lender to
demand from Borrower additional sums to make or complete any Replacement.
16
(l) Upon reasonable prior notice by Lender, Borrower shall permit Lender
and Lender's agents and representatives (including, without limitation, Lender's
engineer, architect, or inspector) or third parties making Replacements pursuant
to this Section 6 to enter onto each individual Property during normal business
hours (subject to the rights of tenants under their Leases) to inspect the
progress of any Replacements and all materials being used in connection
therewith and to examine all plans and shop drawings relating to such
Replacements which are or may be kept at each individual Property. Borrower
shall cause all contractors and subcontractors to cooperate with Lender or
Lender's representatives or such other persons described above in connection
with inspections described in this Section 6(l), the completion of Replacements
pursuant to this Section 6(j) or in connection with the inspections described in
Section 6(m) below.
(m) If Lender has determined in its reasonable discretion that any
Replacements are not being completed in a timely and workmanlike manner or in
the event that the amount disbursed for the completion of a single Replacement
pursuant to a prior disbursement from the Replacement Reserve Account exceeded
Two Hundred Thousand and No/100 Dollars ($200,000), Lender may require an
inspection of the applicable individual Property at Borrower's expense prior to
making a monthly disbursement from the Replacement Reserve Account in order to
verify completion of such Replacements. Lender may require that such inspection
be conducted by an appropriate independent qualified professional selected by
Lender and/or may require a copy of a certificate of completion by an
independent qualified professional acceptable to Lender prior to the
disbursement of any amounts from the Replacement Reserve Account. Borrower
shall pay the expense of the inspection as required hereunder, whether such
inspection is conducted by Lender or by an independent qualified professional.
(n) The Replacements and all materials, equipment, fixtures, or any other
item comprising a part of any Replacement shall be constructed, installed or
completed, as applicable, free and clear of all mechanic's, materialman's or
other liens (except for those liens which have been approved in writing by
Lender and Permitted Financing (as defined in the Security Instruments).
(o) In the event that the prior request for disbursement included any
amount in excess of Three Hundred Fifty Thousand and No/100 Dollars ($350,000)
for any single Replacement requiring construction, installation or completion,
Lender may require Borrower to provide Lender with a search of title to the
applicable individual Property prior to making any additional disbursements from
the Replacement Reserve Account, which search shows that no mechanic's or
materialmen's liens or other liens of any nature have been placed against the
applicable individual Property since the date of recordation of the related
Security Instruments and that title to such individual Property is free and
clear of all liens (other than the lien of the related Security Instruments and
any other liens previously approved in writing by the Lender, if any).
(p) All Replacements shall comply in all material respects with all
applicable Legal Requirements of all Governmental Authorities having
jurisdiction over the applicable individual Property and applicable insurance
requirements including, without limitation, applicable building codes, special
use permits, environmental regulations, and requirements of insurance
underwriters.
17
(q) In addition to any insurance required under the Loan Documents,
Borrower shall provide or cause to be provided workmen's compensation insurance,
builder's risk, and public liability insurance and other insurance to the extent
required under applicable law in connection with a particular Replacement. All
such policies shall be in form and amount reasonably satisfactory to Lender.
All such policies which can be endorsed with standard mortgagee clauses making
loss payable to Lender or its assigns shall be so endorsed. Certified copies of
such policies shall be delivered to Lender.
(r) (i) It shall be an Event of Default under this Agreement if (i)
Borrower fails to make the initial Replacement Reserve Monthly Deposit in
accordance with this Section 6 or (ii) fails to comply with any other provision
of this Section 6 and such failure is not cured within thirty (30) days after
notice from Lender provided that, if such default cannot reasonably be cured
within such 30 day period and Borrower shall have commenced to cure such default
within such 30 days period and thereafter diligently and expeditiously proceeds
to cure the same, such thirty (30) day period shall be extended for so long as
it shall require Borrower, in the exercise of due diligence to cure such
default, it being agreed that no such extension shall be for a period in excess
of 60 days. Upon the occurrence of an Event of Default, Lender may use the
Replacement Reserve Fund (or any portion thereof) for any purpose, including but
not limited to completion of the Replacements as provided in Section 6(j), or
for any other repair or replacement to any individual Property or toward payment
of the Debt in such order, proportion and priority as Lender may determine in
its sole discretion. Lender's right to withdraw and apply the Replacement
Reserve Funds shall be in addition to all other rights and remedies provided to
Lender under this Agreement and the other Loan Documents.
(ii) Nothing in this Agreement shall obligate Lender to apply all or
any portion of the Replacement Reserve Fund on account of an Event of
Default to payment of the Debt or in any specific order or priority.
(s) The insufficiency of any balance in the Replacement Reserve Account
shall not relieve Borrower from its obligation to fulfill all preservation and
maintenance covenants in the Loan Documents.
(t) Borrower shall indemnify Lender and hold Lender harmless from and
against any and all actions, suits, claims, demands, liabilities, losses,
damages, obligations and costs and expenses (including litigation costs and
reasonable attorneys fees and expenses) arising from or in any way connected
with the performance of the Replacements. Borrower shall assign to Lender all
rights and claims Borrower may have against all persons or entities supplying
labor or materials in connection with the Replacements; provided, however, that
Lender may not pursue any such right or claim unless an Event of Default has
occurred and remains uncured.
(u) The following capitalized terms shall have the meanings set forth
below:
"Eligible Investments" shall mean any one or more of the following
investments in obligations or securities acquired at a purchase price of
not greater than par, including those issued by Lender or any affiliate of
Lender, provided that such obligations or
18
securities are either payable on demand or have a maturity not later than
the Business Day immediately prior to the date on which the proceeds
thereof are anticipated to be expended or applied pursuant to the terms of
the Loan Documents:
(i) direct obligations of, and obligations fully guaranteed as
to payment of principal and interest by, the United States,
Federal Home Loan Mortgage Corporation, Federal National
Mortgage Association or any agency or instrumentality of the
United States of America provided such obligations are
backed by the full faith and credit of the United States of
America;
(ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia at
all times having the highest long-term debt rating of the
Rating Agencies, or such lower rating (but not lower than
the second highest such rating category of the Rating
Agencies) as will not or would not result in the
qualification, reduction or withdrawal of the initial
ratings assigned in connection with a Securitization by the
Rating Agencies, as evidenced by a letter confirming such
result by the Rating Agencies;
(ii) commercial or finance company paper which is rated at all
times by the Rating Agencies in its highest unsecured
commercial or finance company paper rating category or such
lower unsecured commercial or finance company paper rating
category (but not lower than the second highest such rating
category of the Rating Agencies) as will not or would not
result in the qualification, reduction or withdrawal of the
initial ratings assigned in connection with a Securitization
by the Rating Agencies, as evidenced by a letter confirming
such result by the Rating Agencies;
(iv) certificates of deposit, demand or time deposits, federal
funds or bankers' acceptances issued by any depository
institution or trust company incorporated under the laws of
the United States of America or of any state thereof and
subject to supervision and examination by federal or state
banking authorities, provided that the commercial paper or
long-term unsecured debt obligations of such depository
institution or trust company (or in the case of the
principal depository institution or trust company in a
holding company system, the commercial paper or long-term
unsecured debt obligations of such holding company) are
rated at all times in the highest rating category for such
securities by the Rating Agencies, or such lower category
for such securities (but not lower than the second highest
such rating category of the Rating Agencies) as will not or
would not result in the qualification, reduction or
withdrawal of the initial ratings assigned in connection
with a Securitization by the Rating Agencies, as evidenced
by a letter confirming such result by the Rating Agencies;
(v) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation as will not or would
not result in the qualification, reduction or withdrawal of
the initial ratings assigned in connection with a
Securitization by the Rating Agencies, as evidenced by a
letter confirming such result by the Rating Agencies;
(vi) repurchase obligations with respect to any security
described in clauses (a) and (b) of this definition, in each
case entered into with a depository institution or trust
company (acting as principal) described in clause (d) above;
(vii)securities (other than stripped bonds or stripped coupons)
bearing interest or sold at a discount that are issued by
any corporation incorporated under the laws of the United
States of America or any state thereof or the District of
Columbia which are rated at all times in the highest rating
category of the Rating Agencies, or in such lower category
(but not lower than the second highest such rating category
of the Rating Agencies) as will not or would not result in
the qualification, reduction or withdrawal of the initial
ratings assigned in connection with a Securitization by
19
the Rating Agencies, as evidenced by a letter confirming
such result by the Rating Agencies;
(viii)interests in money market funds which at all times have a
rating of "AAA" by the Rating Agencies, or such lower rating
(but not lower than the second highest rating category of
the Rating Agencies for money market funds) as will not or
would not result in the qualification, reduction or
withdrawal of the initial ratings assigned in connection
with a Securitization by the Rating Agencies, as evidenced
by a letter confirming such result from the Rating Agencies;
and
(ix) such other investment bearing interest or sold at a discount
acceptable to Lender and the Rating Agencies as will or
would not result in the qualification, reduction or
withdrawal of the initial ratings assigned in connection
with a Securitization by the Rating Agencies, as evidenced
by a letter confirming such result from the Rating Agencies;
provided that such investment shall be rated at all times by
the Rating Agencies not lower than its second highest rating
category for investments of such type.
20
No obligation or security set forth above shall be an Eligible Investment if (i)
such obligation or security evidences a right to receive only interest payments
or (ii) the right to receive principal and interest payments derived from the
underlying investment provide a yield to maturity in excess of one hundred
twenty percent (120%) of the yield to maturity at par of such underlying
investment.
"Governmental Authority" shall mean any court, board, agency, commission,
office or authority of any nature whatsoever for any governmental ▇▇▇▇ (▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ or otherwise) whether now or hereafter
in existence.
"Legal Requirements" shall mean, with respect to each individual Property, all
federal, state, county, municipal and other governmental statutes, laws, rules,
orders, regulations, ordinances, judgments, decrees and injunctions of
Governmental Authorities affecting such Individual Property or any part thereof
or the construction, use, alteration or operation thereof, or any part thereof,
whether now or hereafter enacted and in force, and all permits, licenses and
authorizations and regulations relating thereto, and all covenants, agreements,
restrictions and encumbrances contained in any instruments, either of record or
known to Borrower, at any time in force affecting such individual Property or
any part thereof, including, without limitation, any which may (i) require
repairs, modifications or alterations in or to such individual Property or any
part thereof, or (ii) in any way limit the use and enjoyment thereof.
7. Required Repairs; Required Repair Funds.
---------------------------------------
(a) Borrower shall perform the repairs at its Properties, as more
particularly set forth on Schedule C hereto (such repairs hereinafter referred
to as "Property Required Repairs"). Borrower shall complete each of the Property
Required Repairs on or before August 1, 1999. On the date hereof, Borrower
shall deposit with Lender an amount equal to 125% of the cost to perform the
Property Required Repairs for each Property set forth on Schedule C hereto to
the extent such Property Required Repairs have not yet been performed in
accordance with this Section 7. Amounts so deposited shall hereinafter be
referred to as the "Required Repair Fund". Lender will maintain the Required
Repair Fund in a segregated account (the "Required Repair Account") and the
Required Repair Fund shall be invested and reinvested by Lender, at Borrower's
direction, in one or more Eligible Investments, subject to the following
restrictions: (A) such Eligible Investments and the proceeds thereof shall be
deemed a part of the Required Repair Fund; (B) each such Eligible Investment
shall be made in the name of Lender (in its capacity as such) or in the name of
a nominee of Lender under its complete and exclusive dominion and control or, if
applicable law provides for perfection of pledges of an instrument not evidenced
by a certificate or other instrument through registration of such pledge on
books maintained by or on behalf of the issuer of such investment, such pledge
may be so registered; (C) Lender shall have the sole control over such
investment, the income thereon and the proceeds thereof; (D) other than
investments described in clause (B) above, any certificate or other instrument
evidencing such investment shall be delivered directly to Lender or its agent;
(E) the proceeds of each investment shall be remitted by the purchaser thereof
directly to Lender and (F) Lender shall not be liable for any loss sustained on
the investment of any funds constituting a part of the Required Repair Fund.
21
(b) Borrower hereby grants a first priority security interest to Lender, as
security for payment of all sums due under the Loan and the performance of all
other terms, conditions and covenants on Borrower's part to be paid and
performed, in all of Borrower's right, title and interest in and to the Required
Repair Fund and the Required Repair Account and shall execute and deliver to
Lender such UCC-1 Financing Statements and other documents or instruments as
Lender may request in order to grant and perfect such security interest.
Borrower shall not, without obtaining the prior written consent of Lender,
further pledge, assign or grant any security interest in the Required Repair
Fund or the Required Repair Account or permit any lien or encumbrance to attach
thereto, or any levy to be made thereon, or any UCC-1 Financing Statements,
except those naming Lender as the secured party, to be filed with respect
thereto. Upon the occurrence of an Event of Default, Lender may apply any sums
then present in the Required Repair Fund to the payment of the Debt in any order
in its sole discretion. Until expended or applied as herein provided, the
Required Repair Fund shall constitute additional security for the Debt.
(c) After Borrower's initial deposit into the Required Repair Account
pursuant to paragraph (a) hereof, Lender shall disburse to Borrower the Required
Repair Funds from the Required Repair Account from time to time upon
satisfaction by Borrower of each of the following conditions: (a) Borrower
shall submit a written request for payment to Lender at least ten (10) days
prior to the date on which Borrower requests such payment be made and specifies
the Property Required Repairs to be paid; (b) on the date such request is
received by Lender and on the date such payment is to be made, no Event of
Default shall exist and remain uncured; (c) Lender shall have received a
certificate from Borrower (i) stating that all Property Required Repairs at the
applicable Property funded by the prior requested disbursement have been
completed in good and workmanlike manner and in accordance with all applicable
federal, state and local laws, rules and regulations, (ii) any license, permit
or other approval by any Governmental Authority required to commence and/or
complete the Property Required Repairs to be funded by the requested
disbursement have been obtained, (iii) identifying each person that will supply
materials or labor in connection with the Property Required Repairs to be
performed at such Property and to be funded by the requested disbursement and
including copies of invoices or statements from each such person or entity
setting forth the costs for such materials or labor, and (iv) stating that each
person or entity that supplied materials or labor in connection with the
Property Required Repairs performed at a Property and funded by the prior
requested disbursement has been paid all amounts to be paid to such person or
entity as set forth in the written request with respect to such prior requested
disbursement and setting forth the amount paid to each such person and, if such
requested disbursement includes amounts constituting the final payment to any
person on account of any Property Required Repairs, such certificate shall be
accompanied by lien waivers or other evidence of payment satisfactory to Lender;
(d) at Lender's option if the amount disbursed for Property Required Repairs
with respect to an individual Property under the prior requested disbursement
exceeded a total of Three Hundred Fifty Thousand and No/100 Dollars ($350,000),
a title search for any such Property indicating that such Property is free from
all liens, claims and other encumbrances not previously approved by Lender, and
(e) Lender shall have received such other evidence as Lender shall reasonably
request that the Property Required Repairs at any Property funded by the prior
requested disbursement have been completed and the related costs and expenses
have been paid. Lender shall not be required to
22
make disbursements from the Required Repair Account with respect to any such
Property more frequently than once per calendar month and unless such requested
disbursement is in an amount greater than Fifteen Thousand and No/100 Dollars
($15,000) (or a lesser amount if the total amount in the Required Repair Account
is less than Fifteen Thousand and No/100 Dollars ($15,000), in which case only
one disbursement of the amount remaining in the account shall be made) and such
disbursement shall be made only upon satisfaction of each condition contained in
this paragraph (c). Prior to Borrower's initial deposit of funds into the
Required Repair Fund in accordance with paragraph (b) hereof or thereafter with
respect to any calendar month during which a request for payment from the
Required Repair Fund is not submitted to Lender pursuant to this paragraph (c),
Borrower shall deliver to Lender, as a part of the monthly reports to be
delivered pursuant to Section 3.11 of the Security Instruments, a certificate
setting forth the amounts paid during the preceding calendar month for Property
Required Repairs and setting forth each person to whom such amounts were paid,
the amount paid to each such person or entity and the related Property Required
Repairs performed by each such person.
(d) Failure to Perform Required Repairs and Make Initial Deposit. It shall
be an Event of Default under this Agreement if (i) Borrower does not exercise
diligent efforts to complete the Property Required Repairs at each Property by
the required deadline for each repair as set forth on Schedule C, or (ii)
Borrower does not make the initial deposit into the Required Repair Fund in
accordance with paragraph (b) hereof. Upon the occurrence of an Event of
Default, Lender, at its option, may withdraw all Required Repair Funds from the
Required Repair Account and Lender may apply such funds either to completion of
the Property Required Repairs at one or more of the Properties or toward payment
of the Debt in such order, proportion and priority as Lender may determine in
its sole discretion. Lender's right to withdraw and apply Required Repair Funds
shall be in addition to all other rights and remedies provided to Lender under
this Agreement and the other Loan Documents.
8. Events of Default. The term "Event of Default" as used in this Agreement
-----------------
shall have the meaning ascribed to such term in the Note and the Security
Instruments.
Upon the occurrence of an Event of Default or a default beyond applicable
notice and grace periods, if any, under this Agreement and, if Lender shall not
have exercised its option under clause (i) below, during the continuance
thereof, Lender (i) may, at its option and in its sole discretion, declare the
Debt immediately due and payable, and (ii) may pursue any and all remedies
provided for in the Loan Documents, or otherwise available.
9. Sale of Notes and Securitization; Indemnification.
-------------------------------------------------
(a) At the request of the holder of the Note and at Borrower's expense,
and, to the extent not already required to be provided by Borrower under this
Agreement, Borrower shall use reasonable efforts to satisfy the market standards
to which the holder of the Note customarily adheres or which may be reasonably
required in the marketplace or by the Rating Agencies in connection with the
sale or transfer of the Note or participations or other interests therein or,
subject to Section 9(c) below, the first successful securitization (such sale,
transfer and/or securitization, the "Securitization") of rated single or multi-
class securities (the "Securities")
23
secured by or evidencing ownership interests in the Note and the Security
Instruments, including, without limitation, to:
(i) (A) provide such financial and other information with
respect to the Properties, the Borrower, the Operating
Tenant, the Manager and the Franchisor as is reasonably
available to Borrower, (B) provide existing budgets
relating to the Properties and (C) to perform or permit or
cause to be performed or permitted such site inspection,
appraisals, market studies, environmental reviews and
reports (Phase I's and, if appropriate, Phase II's),
engineering reports (including updates of any such
information delivered to Lender at the closing of the Loan)
and other due diligence investigations of the Properties,
as may be reasonably requested by the holder of the Note or
the Rating Agencies or as may be necessary or appropriate
in connection with the Securitization (the "Provided
Information"), together, if customary, with appropriate
verification and/or consents of the Provided Information
through letters of independent auditors or opinions of
counsel in form reasonably acceptable to the Lender and
otherwise acceptable to the Rating Agencies;
(ii) deliver an opinion of counsel that may be relied upon by
Lender and any Rating Agency rating any Securities issued
in connection with the Securitization, and their respective
successors and assigns, as to nonconsolidation and true
sale, if applicable, with respect to Borrower and their
affiliates and the Properties, which opinion and counsel
shall be reasonably satisfactory to Lender and satisfactory
to any such Rating Agency (the "Insolvency Opinion") or any
other opinion customary in securitization transactions with
respect to the Properties and Borrower and its affiliates,
which counsel and opinions shall be reasonably satisfactory
to the holder of the Note and the Rating Agencies;
(iii) (A) deliver one or more Officer's Certificates certifying
as to the accuracy in all material respects of all
representations made by Borrower in the Loan Documents as
of the date of the closing of the Securitization setting
forth any then existing facts conflicting with any such
representations, (B) deliver certificates of the relevant
Governmental Authorities in all relevant jurisdictions
indicating the good standing and qualification of each
individual Borrower and their respective general partners
or managing members, as applicable, as of the date of the
Securitization and (C) make such additional representations
and warranties as of the closing date of the Securitization
with respect to the Properties, Borrower, and the Loan
Documents as are customarily provided in securitization
transactions and as may be reasonably requested by the
holder of the
24
Note or the Rating Agencies and consistent with the facts
covered by such representations and warranties as they
exist on the date thereof; and
(iv) execute such amendments to the Loan Documents and
organizational documents (including, without limitation,
the inclusion of the single purpose entity covenants
contained in Section 4.2 of the Security Instruments), and
establish and fund such reserve funds as and to the extent
provided herein or as otherwise may be requested by the
Rating Agencies to effect the Securitization; provided,
however, that the Borrower shall not be required to modify
or amend any Loan Document if such modification or
amendment would (i) change the interest rate, the stated
maturity or the amortization of principal amount of the
Loan set forth herein, or (ii) modify or amend any other
economic term or other material term of any Loan Document
in a manner that has a material adverse effect on Borrower
other than as specifically set forth in this paragraph
(iv).
(b) Borrower understands that certain of the Provided Information and the
financial statements, certificates, reports or information required to be
provided by Borrower to Lender pursuant to Section 3.11 of the Security
Instruments (collectively, the "Required Records") may be included in disclosure
documents in connection with the Securitization and the Initial Securitization,
(defined below) including, without limitation, a prospectus, prospectus
supplement or private placement memorandum (each, a "Disclosure Document") and
may also be included in filings with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), or
the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and
that such Disclosure Documents may be provided or made available to investors or
prospective investors in the Securities, the Rating Agencies, and service
providers relating to the Securitization and the Initial Securitization. If
required by Lender, Borrower shall review such Disclosure Document and advise
Lender in writing of any required revisions to correct inaccuracies with respect
to the Provided Information and or the Required Records. In the event that any
Disclosure Document is required to be revised prior to the sale of all
Securities, the Borrower will use reasonable efforts to cooperate with Lender in
updating the Disclosure Document by providing all current information necessary
to keep the Disclosure Document accurate and complete in all material respects.
Lender will promptly discontinue the use of any Disclosure Document upon such
holder's receipt of written notice from Borrower that such Disclosure Document
requires revision to correct any inaccuracy.
(c) Borrower acknowledges and agrees that notwithstanding anything to the
contrary herein or in any other Loan Document, the transfer of the Loan to
LaSalle National Bank as Trustee for Restructured Asset Certificates with
Enhanced Returns Series 1998-CML-2 Certificates and the issuance of certificates
pursuant thereto (the "Initial Securitization") is not included in and shall not
be deemed to be Securitization, as that term is defined herein.
25
10. Incorporation of Provisions. The Note, the Security Instruments and the
---------------------------
other Loan Documents are subject to the conditions, stipulations,
agreements and covenants contained herein to the same extent and effect as
if fully set forth therein until this Agreement is terminated by the
payment in full of the Debt.
11. Further Assurances. Borrower shall on demand of Lender do any act or
------------------
execute any additional documents required by Lender to confirm the lien of
the Security Instruments.
12. Representations and Warranties. Borrower, represents and warrants to
------------------------------
Lender as follows:
(a) Borrower is duly qualified to do business in the States in which the
Properties are located unless such qualification is not necessary pursuant to
the applicable laws of the States.
(b) Borrower (and the undersigned representative, if any, of Borrower) has
the full power and authority to execute and deliver this Agreement and the Loan
Documents, and the same constitute the legal, valid and binding obligations of
Borrower.
(c) Borrower is not contemplating either the filing of a petition by it
under any state or federal bankruptcy or insolvency laws or the liquidation of
all or a major portion of such individual Borrower's assets or property, and no
individual Borrower has knowledge of any person contemplating the filing of any
such petition against it.
(d) No statement of fact made by Borrower in this Agreement or in any of
the other Loan Documents contains any untrue statement of a material fact or
omits to state any material fact known to Borrower necessary to make statements
contained herein or therein not misleading. There is no fact presently known to
Borrower which has not been disclosed to Lender which materially and adversely
affects, nor as far as Borrower can foresee, would materially and adversely
affect, any of the Properties or the business, operations or condition
(financial or otherwise) of Borrower.
(e) No part of the proceeds of the Loan will be used for the purpose of
purchasing or acquiring any "margin stock" within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System or for any other purpose
which would be inconsistent with such Regulation U or any other Regulations of
such Board of Governors, or for any purposes prohibited by Legal Requirements or
by the terms and conditions of this Agreement or the other Loan Documents.
13. Construction of Agreement. The titles and headings of the paragraphs of
-------------------------
this Agreement have been inserted for convenience of reference only
and are not intended to summarize or otherwise describe the subject matter
of such paragraphs and shall not be given any consideration in the
construction of this Agreement.
26
14. Parties Bound, Etc. The provisions of this Agreement shall be binding
------------------
upon and inure to the benefit of Borrower, Lender and their
respective heirs, executors, legal representatives, successors and assigns
(except as otherwise prohibited by this Agreement).
15. Waivers. Lender may at any time and from time to time waive any one or
-------
more of the conditions contained herein, but any such waiver shall be
deemed to be made in pursuance hereof and not in modification thereof, and
any such waiver in any instance or under any particular circumstance shall
not be considered a waiver of such condition in any other instance or any
other circumstance.
16. Governing Law. (i) This Agreement shall be deemed to be a contract
-------------
entered into pursuant to the laws of the State of New York and shall in all
respects be governed, construed, applied and enforced in accordance with
the laws of the State of New York, provided however, that with respect to
the creation, perfection, priority and enforcement of the lien of the
Security Instruments, and the determination of deficiency judgments, the
laws of the State where the related Property is located shall apply.
(ii) Any legal action or proceeding with respect to this Agreement or
any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, Borrower hereby accepts, each for
itself and in respect of its property, generally and unconditionally, the non-
exclusive jurisdiction of the aforesaid courts and appellate courts from any
thereof. Borrower irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to Borrower at
its address set forth in Article 15 of the Security Instruments. Borrower
hereby irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement or any other Loan Document brought in
the courts referred to above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of Lender, to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Borrower in any other jurisdiction.
17. Severability. If any term, covenant or provision of this Agreement shall
------------
be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be construed without such term, covenant or provision.
18. Notices. All notices required to be given under the terms of this
-------
Agreement shall be given in accordance with and to the addresses set forth
in Article 15 of the Security Instruments.
19. Fees and Expenses. Borrower shall pay to Lender, upon demand, all
-----------------
expenses incurred by Lender in connection with the collection of the Debt,
the enforcement of the Loan Documents, and in curing any defaults under the
Loan Documents(including, without
27
limitation, reasonable attorneys' fees, which shall include attorney's fees
incurred in any trial, appellate or bankruptcy proceeding), with, if any
such expenses are past due, interest thereon at a rate per annum equal to
the rate of interest payable pursuant to the Note, provided that such
interest rate shall in no event exceed the maximum interest rate which
Borrower may by law pay, from the date of payment by Lender to the date of
payment to Lender, which sums and interest shall be secured by the Security
Instruments.
20. Modification. This Agreement may not be modified, amended or terminated,
------------
except by an agreement in writing executed by the parties hereto.
21. No Oral Agreements. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
------------------
CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES
TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER(S)) AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT,
ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS
WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US, EXCEPT AS WE MAY AGREE IN WRITING TO MODIFY IT.
22. Definitions. Capitalized terms not defined herein shall have the meaning
-----------
set forth in the Security Instruments. In addition to the foregoing, the
word "person" shall include an individual, corporation, partnership,
limited liability company, trust, unincorporated association, government,
governmental authority and any other entity.
23. Recourse. The provisions of Article 14 of the Note are hereby
--------
incorporated by reference to the fullest extent as if the text of such
Article were set forth in its entirety herein.
28
IN WITNESS WHEREOF, Borrower and Lender have duly executed this Agreement
the day and year first above written.
BORROWERS:
EQUISTAR IRVINE COMPANY, L.L.C., a Delaware limited
liability company
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: ______________________________
Name:
Title:
CAPSTAR SACRAMENTO COMPANY, L.L.C., a Delaware
limited liability company
By: MeriStar Hospitality Operating Partnership, L.P., a
Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: __________________________
Name:
Title:
29
MERISTAR SECURED HOLDINGS LLC, a Delaware limited
liability company
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: _______________________________
Name:
Title:
CAPSTAR SAN FRANCISCO COMPANY, L.L.C., a Delaware
limited liability company
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: ___________________________
Name:
Title:
EQUISTAR COLORADO COMPANY, L.L.C, a Delaware limited
liability company
By: MeriStar Hospitality Operating Partnership, L.P., a
Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: ___________________________
Name:
Title:
30
CAPSTAR ENGLEWOOD COMPANY, L.L.C., a Delaware
limited liability company
By: MeriStar Hospitality Operating Partnership, L.P., a
Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: ___________________________
Name:
Title:
CAPSTAR CHICAGO COMPANY, L.L.C., a Delaware
limited liability company
By: MeriStar Hospitality Operating Partnership, L.P., a
Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: ___________________________
Name:
Title:
CAPSTAR INDIANAPOLIS COMPANY, L.L.C., a Delaware
limited liability company
By: MeriStar Hospitality Operating Partnership, L.P., a
Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: ___________________________
Name:
Title:
31
CAPSTAR LAFAYETTE COMPANY, L.L.C., a Delaware
limited liability company
By: MeriStar Hospitality Operating Partnership, L.P., a
Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: ________________________________
Name:
Title:
CAPSTAR ALBUQUERQUE COMPANY, L.L.C., a Delaware
limited liability company
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: ________________________________
Name:
Title:
EQUISTAR ARLINGTON PARTNERS, L.P., a Delaware limited
partnership
By: MeriStar SPE LLC, a Delaware limited liability
company, its general partner
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, its managing
member
By: MeriStar Hospitality Corporation, a
Maryland corporation, is general partner
By: ______________________________
Name:
Title:
32
EQUISTAR SALT LAKE COMPANY, L.L.C., a Delaware
limited liability company
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: __________________________
Name:
Title:
MADISON MOTEL ASSOCIATES, LLP, a Wisconsin limited
liability partnership
By: MeriStar Hospitality Operating Partnership, L.P., a
Delaware limited partnership, its managing member
By: MeriStar Hospitality Corporation, a Maryland
corporation, its general partner
By: ___________________________
Name:
Title:
33
LENDER:
▇▇▇▇▇▇ FINANCIAL CORPORATION, a Pennsylvania
corporation
By: _____________________________________
Name:
Title:
34