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EXHIBIT 10.3
SECOND AMENDMENT TO MASTER AGREEMENT
THIS SECOND AMENDMENT TO MASTER AGREEMENT ("Second Amendment") is made
as of the 6th day of February, 1997, among Interstate Hotels Corporation, a
Pennsylvania corporation ("IHC"), Crossroads/Memphis Partnership, L.P., a
Delaware limited partnership (the "Partnership"), Crossroads/Memphis Financing
Company, L.L.C., a Delaware limited liability company (the "Additional
Lessee"), Equity Inns, Inc., a Tennessee corporation ("XXXX"), Equity Inns
Partnership, L.P., a Tennessee limited partnership ("EIP"), EQI Financing
Partnership I, L.P., a Tennessee limited partnership (the "Additional Lessor")
and Crossroads Future Company, L.L.C. (the "New Lessee").
RECITALS
A. EIP and the Partnership are parties to that certain
Consolidated Lease Amendment dated as of November 15, 1996 (the "Existing
Lease"), which Existing Lease represents (as of the date hereof) forty-eight
(48) separate leases (the "Existing Leases").
B. EIP currently owns, directly or indirectly, forty-eight (48)
hotel properties described in Exhibit A to this Second Amendment that are
leased under the Existing Lease to the Partnership.
C. EIP is transferring to the Additional Lessor as of the date
hereof its fee interest in 23 of the hotel properties (the "Transfer Hotels")
identified on Exhibit A to this Second Amendment as Transfer Hotels, and in
connection with such transfer EIP desires to assign to the Additional Lessor
all of its rights under the 23 leases represented by the Existing Lease
relating to all of the Transfer Hotels (the "23 Existing Leases").
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D. In connection with the transfer of the Transfer Hotels to the
Additional Lessor, at the request of EIP and the Additional Lessor, the
Partnership has agreed to assign to the Additional Lessee all of its rights
under the 23 Existing Leases.
E. The Additional Lessor and the Additional Lessee desire to
amend certain provisions of the 23 Existing Leases.
F. EIP and the Partnership desire to amend certain provisions of
the Existing Lease relating to the 25 hotel properties (the "Remaining Hotels")
identified on Exhibit A as Remaining Hotels.
G. The parties hereto desire to amend the Master Agreement dated
as of November 4, 1996 (as amended by the First Amendment to Master Agreement
dated November 15, 1996, the "Original Master Agreement") among IHC, the
Partnership, XXXX, EIP, and New Lessee to make certain amendments and other
agreements with respect to the foregoing and the Original Master Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used but not defined
herein shall have the meanings assigned to them in the Original Master
Agreement.
2. ASSIGNMENT AND ASSUMPTION OF THE 23 EXISTING LEASES.
a. By EIP and the Additional Lessor:
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(i) EIP hereby (A) assigns to the Additional
Lessor all of its right, title and interest in and to the 23
Existing Leases and (B) conveys, transfers and assigns to the
Additional Lessor all of its interest in and to any fixtures,
equipment and other personal property used in connection with
the Transfer Hotels.
(ii) The Additional Lessor hereby (A) accepts the
assignments, conveyances and transfers in paragraph (i) above
and (B) assumes all of the obligations of the "Lessor" under
the 23 Existing Leases accruing from and after the date
hereof.
(iii) EIP hereby agrees to hold the Additional
Lessor harmless from the obligations and liabilities of the
"Lessor" under the 23 Existing Leases arising from or relating
to events or circumstances occurring prior to the date hereof.
The Additional Lessor hereby agrees to hold EIP harmless from
the obligations and liabilities of the "Lessor" under the 23
Existing Leases arising from or relating to events or
circumstances occurring on or after the date hereof.
b. By the Partnership and the Additional Lessee:
(i) The Partnership hereby (A) assigns to the
Additional Lessee all of its right, title and interest in and
to the 23 Existing Leases and (B) conveys, transfers and
assigns to the Additional Lessee all of its interest in and to
any fixtures, equipment and other personal property used in
connection with the Transfer Hotels.
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(ii) The Additional Lessee hereby (A) accepts the
assignments, conveyances and transfers in paragraph (i) above
and (B) assumes all of the obligations of the "Lessee" under
the 23 Existing Leases accruing from and after the date
hereof.
(iii) The Partnership hereby agrees to hold the
Additional Lessee harmless from the obligations and
liabilities of the "Lessee" under the 23 Existing Leases
arising from or relating to events or circumstances occurring
prior to the date hereof. The Additional Lessee hereby agrees
to hold harmless the Partnership from the obligations and
liabilities of the "Lessee" under the 23 Existing Leases
arising from or relating to events or circumstances occurring
on or after the date hereof.
c. EIP agrees to look solely to the Partnership and the
IHC Guarantees with respect to the obligations of the "Lessee" under
the 23 Existing Leases accruing, or arising from or relating to events
or circumstances occurring, prior to the date hereof; and the
Additional Lessor agrees that it will have no rights or claims with
respect thereto. Except as provided in Section 2.e below, the
Additional Lessor agrees to look solely to the Additional Lessee and
the IHC Guarantees with respect to the obligations of the "Lessee"
under the 23 Existing Leases accruing, or arising from or relating to
events or circumstances occurring, from and after the date hereof; and
EIP agrees that it will have no rights or claims with respect thereto.
d. The Partnership agrees to look solely to EIP with
respect to the obligations of the "Lessor" under the 23 Existing
Leases accruing, or arising from or relating to
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events or circumstances occurring, prior to the date hereof; and the
Additional Lessee agrees that it will have no rights or claims with
respect thereto. Except as provided in Section 2.e below, the
Additional Lessee agrees to look solely to the Additional Lessor with
respect to the obligations of "Lessor" under the 23 Existing Leases
accruing, or arising from or relating to events or circumstances
occurring, from and after the date hereof; and the Partnership agrees
that it will have no rights or claims with respect thereto.
e. Notwithstanding Sections 2.c and 2.d above, (i) the
Additional Lessor may also look to the Partnership to the extent of
the Partnership's guaranty of the indemnification obligations of the
"Lessee" contained in the Successor Consolidated Lease Amendment
described in Section 3.a below and (ii) the Additional Lessee may also
look to EIP to the extent of EIP's guaranty of the indemnification
obligations of the "Lessor" contained in such Successor Consolidated
Lease Amendment.
3. MODIFICATION AND AMENDMENT OF THE EXISTING LEASE.
a. Contemporaneously with the execution of this
Agreement, the Additional Lessor and the Additional Lessee shall
execute the Successor Consolidated Lease Amendment pursuant to which
the 23 Existing Leases shall be restated and amended, effective as of
the date hereof.
b. Contemporaneously with the execution of this
Agreement, EIP and the Partnership shall execute the First Amendment
to Consolidated Lease Amendment pursuant to which the 25 leases
represented by the Existing Lease relating to the Remaining Hotels
shall be amended, effective as of the date hereof.
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4. AMENDMENTS TO THE ORIGINAL MASTER AGREEMENT. The following
amendments to the Original Master Agreement shall be effective as of the date
hereof:
a. Section 1.3(a) of the Original Master Agreement shall
be amended by inserting after each use of the words, "New Lessee" the
words ", Additional Lessee."
b. Section 1.3(b) of the Original Master Agreement shall
be deleted in its entirety and the following substituted therefor:
(b) For the purposes of this Agreement, the
following shall constitute the "REIT Requirements":
(i) The average of the adjusted tax
bases of EIP's or Additional Lessor's personal
property that is leased to the Partnership,
Additional Lessee, or New Lessee under each Lease at
the beginning and end of a calendar year cannot
exceed 15% of the average of the aggregate adjusted
tax bases of all of EIP's or Additional Lessor's
property that is leased to the Partnership,
Additional Lessee or New Lessee under such Lease at
the beginning and end of such calendar year.
(ii) None of the Partnership, Additional
Lessee or New Lessee can sublet the property that is
leased to it by EIP or Additional Lessor, or enter
into any similar arrangement, on any basis such that
the rental or other amounts paid by the sublessee
thereunder would be based, in whole or in part, on
either (x) the net income or profits derived by the
business activities of the
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sublessee or (y) any other formula such that any
portion of the rent paid by the Partnership,
Additional Lessee or New Lessee to EIP or Additional
Lessor would fail to qualify as "rents from real
property" within the meaning of Section 856(d) of the
Code.
(iii) None of the Partnership, Additional
Lessee or the New Lessee can sublease the property
leased to it by EIP or Additional Lessor to, or enter
into any similar arrangement with, any person in
which XXXX owns, directly or indirectly, a 10% or
more interest, within the meaning of Section
856(d)(2)(B) of the Code.
(iv) XXXX cannot own, directly or
indirectly, a 10% or more interest in IHC, the
Partnership, Additional Lessee or New Lessee, within
the meaning of Section 856(d)(2)(B) of the Code.
(v) No person can own, directly or
indirectly, capital stock of XXXX that exceeds the
"Limit" (as defined in XXXX'x Charter, as amended and
restated).
c. Section 1.3(c) of the Original Master Agreement shall
be deleted in its entirety and the following substituted therefor:
(c) IHC, the Partnership, Additional Lessee and
New Lessee agree that during the period beginning on the
Closing and ending on the earlier to occur of (x) the date no
Lease remains in effect, and (y) XXXX ceases to be qualified
as a real estate investment trust under the Code (the
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"Notice Period"), to notify XXXX, and to use their reasonable
efforts to permit the REIT Requirements to be satisfied,
including but not limited to, providing XXXX with information
regarding the ownership of IHC, the Partnership, Additional
Lessee, New Lessee and their direct or indirect wholly owned
Subsidiaries, if and to the extent the satisfaction of the
REIT requirements is within the reasonable control of IHC, the
Partnership, Additional Lessee and New Lessee, all at the
expense of XXXX. Upon request by XXXX made during the Notice
Period and at the expense of XXXX, IHC, the Partnership,
Additional Lessee and New Lessee agree to cooperate with XXXX
and agree to take reasonable steps requested by XXXX necessary
to maintain the REIT Requirements. Notwithstanding the
foregoing, none of IHC, the Partnership, Additional Lessee, or
New Lessee shall be obligated to take any action which could
reasonably be expected to materially adversely affect IHC, the
Partnership, Additional Lessee or New Lessee. Notwithstanding
anything to the contrary contained in this Agreement, in no
event shall IHC, the Partnership, Additional Lessee or New
Lessee be liable to XXXX, EIP or Additional Lessor for any
consequential damages relating to, resulting from or arising
out of a breach or alleged breach of this Section 1.3.
d. Section 1.4 of the Original Master Agreement shall be
deleted in its entirety and the following substituted therefor:
1.4 Financial Reports
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(a) During the period beginning on the
Closing and ending on the date no Lease remains in
effect, IHC, New Lessee, the Partnership and
Additional Lessee agree to provide to XXXX, EIP and
Additional Lessor the following financial reports and
information within the specified time periods at the
Partnership's, Additional Lessee's or New Lessee's
expense (so as to permit XXXX to file its required
1934 Act reports and file and have declared effective
its 1933 Act registration statements):
(i) Not more than 30 days following
the end of each of the first three calendar
quarters of each year, quarterly unaudited
financial statements, including balance
sheet, statement of operations, statement of
shareholders' equity, statement of cash flows
and related schedules for the Partnership,
Additional Lessee and New Lessee for the most
recently ended calendar quarter, calendar
year to date and comparable prior year
periods prepared in conformity with GAAP;
(ii) Not more than 60 days following
the end of each calendar year, audited annual
financial statements and schedules for the
Partnership, Additional Lessee and New Lessee
for the most recently ended calendar year
prepared
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in accordance with GAAP, audited by a
national accounting firm.
(iii) During the time periods set
forth in (i) and (ii) above, any historical
financial information necessary to re-state
historical financial information of the
Partnership, Additional Lessee or New Lessee
to conform to the presentation of each of the
Partnership's, Additional Lessee's or New
Lessee's audited and unaudited financial
statements at any future time; and
(iv) on a timely basis, at EIP's,
XXXX' or Additional Lessor's expense, any
other information with respect to the
Partnership, Additional Lessee or New Lessee
or the Leased Hotels necessary to permit XXXX
to file on a timely basis its audited annual
(calendar fiscal year) and unaudited
quarterly financial statements and schedules
for EIP and Additional Lessor (but not
separate financial statements for the Leased
Hotels) with the Securities and Exchange
Commission.
(b) If requested by XXXX, and at EIP's,
XXXX' or Additional Lessor's expense, IHC, New
Lessee, the Partnership, and Additional Lessee will
permit XXXX, EIP and Additional Lessor and their
independent public accountants, counsel, financial
advisors, underwriters,
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underwriter's counsel, rating agencies and lenders to
continue to have access (during normal business hours
and upon three business days notice) to review (i)
the financial records of the Leased Hotels and
perform generally accepted auditing procedures with
respect to the Partnership, Additional Lessee, New
Lessee and the Leased Hotels and (ii) such other
records and documents with respect to each Leased
Hotel as XXXX, EIP or Additional Lessor may
reasonably request.
(c) The Partnership, Additional Lessee and
New Lessee shall use their reasonable best efforts to
cause the independent public accountants preparing
audits of the Partnership, Additional Lessee and New
Lessee to provide XXXX, Additional Lessor and the
Partnership with all consents of such accountants
required for XXXX', EIP's or Additional Lessor's
filings with the SEC under the 1933 Act and the 1934
Act or to have XXXX', EIP's or the Additional
Lessor's registration statements declared effective
by the SEC under the 1933 Act.
(d) IHC, the Partnership, Additional Lessee
and New Lessee shall continue to provide EIP, XXXX
and the Additional Lessor true and accurate daily
operating and financial reports in the form set forth
on Schedule 1.4 with respect to each Leased Hotel.
e. Section 1.8(a)(ii) of the Original Master Agreement
shall be deleted in its entirety and the following substituted
therefor:
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(ii) in the event of a Default by the
Partnership, Additional Lessee or New Lessee
hereunder or under the Leases; or
f. Section 1.8(b) of the Original Master Agreement shall
be deleted in its entirety and the following substituted therefor:
(b) The purchase option and right of first
offer granted pursuant to Sections 1.6 and 1.7 hereof
may be terminated by the Partnership, Additional
Lessee or New Lessee in the event of a Default by
EIP, XXXX or Additional Lessor hereunder or under the
Leases.
g. Section 1.11 of the Original Master Agreement shall
be amended by deleting the clause "EIP or XXXX, on the one hand, or
IHC, the Partnership or New Lessee" and substituting therefor the
clause "EIP, XXXX or Additional Lessor, on the one hand, or IHC, the
Partnership, New Lessee or Additional Lessee".
h. Section 2.1 of the Original Master Agreement shall be
deleted in its entirety (except as otherwise provided below) and the
following substituted therefor:
2.1 Representations and Warranties of EIP, XXXX
and Additional Lessor. As used herein, the terms "to the
knowledge of" or similar phrase, shall mean actual knowledge
of an executive officer of XXXX or the general partner of EIP
or Additional Lessor based solely on a written notice or
notification to XXXX, EIP or Additional Lessor from a third
party and does not include any knowledge any such officer may
have obtained in any other capacity. EIP, XXXX and Additional
Lessor each hereby represents and warrants to the Partnership,
New Lessee, IHC and Additional Lessee as follows:
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2.1.1 Organizational Matters. (a) Each of
EIP and Additional Lessor is a limited partnership
duly organized, validly existing and in good standing
under the laws of the State of Tennessee and has the
requisite partnership power and authority to own,
lease or otherwise hold the assets owned, leased or
otherwise held by it and to carry on its business as
presently conducted by it. Each of EIP and
Additional Lessee is duly qualified to do business as
a foreign limited partnership under the laws of the
jurisdictions where such qualification is necessary
or required to operate its assets and/or conduct its
business.
(b) [Unchanged from Original Master
Agreement]
(c) EQI Financing Corporation ("EQI
GP"), a wholly owned subsidiary of General Partner
and the general partner of the Additional Lessor, is
a corporation duly organized, validly existing and in
good standing under the laws of the State of
Tennessee and has the requisite corporate power to
own, lease or otherwise hold the assets owned, leased
or otherwise held by it and to carry on its business
as presently conducted by it. EQI GP is duly
qualified to do business as a foreign corporation
under the laws of the jurisdictions where such
qualification is necessary or required to operate its
assets and/or conduct its business.
2.1.2 Authorization and Effect of Agreement.
Each of XXXX, EIP and Additional Lessor has the
requisite corporate or partnership power and
authority to execute and deliver this Agreement, and
each of
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EIP and Additional Lessor has the requisite
partnership power to execute and deliver the
Consolidated Lease Amendment, the First Amendment to
Consolidated Lease Amendment and the Successor
Consolidated Lease Amendment (collectively,
"Consolidated Leases") to which it is a party and
each Lease to which it is a party and to perform the
transactions contemplated hereby and thereby to be
performed by each of them. The execution and
delivery by EIP, Additional Lessor and XXXX of this
Agreement and the execution and delivery by each of
EIP and Additional Lessor of the Consolidated Leases
to which it is a party and the performance by EIP,
Additional Lessor and XXXX of the transactions
contemplated hereby and thereby to be performed by it
have been duly authorized by all necessary action on
the part of EIP, Additional Lessor and XXXX. This
Agreement has been duly executed and delivered by
EIP, Additional Lessor and XXXX, and the Consolidated
Leases have been duly executed and delivered by EIP
or Additional Lessor, as the case may be, and,
assuming the due execution and delivery of this
Agreement and the Consolidated Leases by the
Partnership, New Lessee, Additional Lessee and/or
IHC, as the case may be, constitute valid and binding
agreements of EIP, Additional Lessor and XXXX
enforceable in accordance with their respective
terms.
2.1.3 No Restrictions. The execution and
delivery of this Agreement by EIP, Additional Lessor
and XXXX and execution and
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delivery of the Consolidated Leases by EIP or
Additional Lessor, as the case may be, and the
performance by EIP, Additional Lessor and XXXX of the
transactions contemplated hereby and thereby to be
performed by each of them will not violate any law,
rule, regulation, judgment, order or decree
applicable to EIP, Additional Lessor or XXXX or
conflict with, or result in any violation of, or
constitute a default (with or without notice or lapse
of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any
obligation or to the loss of a material benefit
under, any provision of the partnership agreement of
EIP or Additional Lessor or the charter or bylaws of
XXXX or any material agreement, contract, lease, or
other instrument or obligation to which EIP,
Additional Lessor or XXXX is a party or by which its
assets are bound (subject to obtaining the consents
described on Schedule 2.1.3). Except as set forth on
Schedule 2.1.3, no material consent, approval, order
or authorization of, notice to or registration,
declaration or filing with, any Governmental
Authority or other entity, domestic or foreign or
other third party is required to be obtained or made
by or with respect to EIP, Additional Lessor or XXXX
in connection with the execution and delivery of this
Agreement or the Consolidated Leases by EIP or
Additional Lessor, as the case may be, or the
performance by EIP, Additional Lessor or XXXX of the
transactions contemplated hereby or thereby to be
performed by it.
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2.1.4 No Brokerage or Finder's Fees. None
of EIP, Additional Lessor or XXXX has incurred any
liability to any broker, finder or agent for any
brokerage fees, finder's fees or commissions with
respect to the transactions contemplated by this
Agreement.
2.1.5 Litigation; Decrees. To the knowledge
of EIP, Additional Lessor and XXXX, there are no
lawsuits, claims, administrative or other proceedings
pending or threatened which seek to enjoin or
otherwise affect the transactions contemplated by
this Agreement, or the Consolidated Leases or relate
to the conduct of the Current Hotels or against or
affecting EIP, Additional Lessor or XXXX or the
Current Hotels which, if determined adversely, would
have a material adverse effect on the Current Hotels.
None of EIP, Additional Lessor or XXXX is in default
under any judgment, order or decree of any
Governmental Authority applicable to the ownership of
the Current Hotels.
2.1.6 Existing Leases. Each Existing Lease
is a valid and binding obligation of EIP and
Additional Lessor and is in full force and effect.
EIP has performed all obligations required to be
performed by it under the Existing Leases and is not
(with or without the lapse of time or the giving of
notice, or both) in breach or default in any respect
thereunder. Each of EIP and Additional Lessor has
made available to IHC true, correct and complete
copies of each Existing Lease.
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i. Section 2.2 of the Original Master Agreement shall be
deleted in its entirety (except as otherwise provided below) and the
following shall be substituted therefor:
2.2 Representations and Warranties of IHC, New
Lessee, Partnership and Additional Lessee. IHC, New Lessee,
the Partnership and Additional Lessee hereby represent and
warrant to EIP, Additional Lessor and XXXX as follows:
2.2.1 Organization. (a) [Unchanged from Original
Master Agreement, except insert the following at the end of
Section 2.2.1(a):] Additional Lessee is a limited liability
company, duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has the requisite
company power and authority to own, lease or otherwise hold
its properties and assets and to carry on its business as
presently conducted and as proposed to be conducted under the
Successor Consolidated Lease Amendment.
(b) [Unchanged from Original Master Agreement except
insert the following at the end of Section 2.2.1(b):]
Partnership owns all of the outstanding equity interests of
the Additional Lessee.
2.2.2 Authorization and Effect of Agreement. IHC,
New Lessee, Additional Lessee and the Partnership have the
requisite corporate, company or partnership power, as
applicable, and authority to execute and deliver this
Agreement, each of the Partnership and Additional Lessee has
the requisite partnership or company power, as applicable, to
execute and deliver the Consolidated Leases to which it is a
party and New Lessee has the requisite
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company power to execute and deliver the Leases to which it is
a party and to perform the transactions contemplated hereby
and thereby to be performed by each of them. The execution
and delivery by IHC, New Lessee, Additional Lessee and the
Partnership of this Agreement and the execution and delivery
by the Partnership or Additional Lessee, as the case may be,
and of the Consolidated Leases, as the case may be, and the
performance by IHC, New Lessee, Additional Lessee and the
Partnership of the transactions contemplated hereby and
thereby to be performed by it have been duly authorized by all
necessary action on the part of IHC, New Lessee, Additional
Lessee and the Partnership. This Agreement has been duly
executed and delivered by IHC, New Lessee, Additional Lessee
and the Partnership and the Consolidated Leases have been duly
executed and delivered by the Partnership or Additional
Lessee, as the case may be, and, assuming the due execution
and delivery of this Agreement and the Consolidated Leases by
XXXX, EIP and/or Additional Lessor, as the case may be,
constitute valid and binding agreements of IHC, New Lessee,
Additional Lessee and the Partnership, enforceable in
accordance with their respective terms.
2.2.3 No Restrictions. The execution and delivery
of this Agreement and the Consolidated Leases by IHC, New
Lessee, Additional Lessee and the Partnership and the
performance by IHC, New Lessee, Additional Lessee and the
Partnership of the transactions contemplated hereby to be
performed by each of them will not violate any law, rule,
regulation, judgment, order or decree applicable to IHC, New
Lessee, Additional Lessee or Partnership or conflict with,
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or result in any violation of, or constitute a default (with
or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration
of any obligation or to the loss of a material benefit under,
any provision of the articles of incorporation or bylaws of
Company or IHC, the certificate of limited partnership and
partnership agreement of the Partnership or the certificate of
formation or the limited liability company agreement of the
Additional Lessee or any material agreement, contract, lease
or other instrument to which Company, IHC, New Lessee,
Additional Lessee or the Partnership is a party or by which
any of their assets are bound. Except as set forth on
Schedule 2.2.3, no material consent, approval, order or
authorization of, or registration, declaration or filing with,
any Governmental Authority or other entity domestic or foreign
or other third party is required to be obtained or made by or
with respect to IHC, New Lessee, Additional Lessee or the
Partnership in connection with the execution and delivery of
this Agreement or the Consolidated Leases by IHC, New Lessee,
Additional Lessee or the Partnership or the performance by
IHC, New Lessee, Additional Lessee or the Partnership of the
transactions contemplated hereby or thereby to be performed by
each of them.
2.2.4 No Brokerage or Finder's Fees. None of IHC,
the Partnership, Additional Lessee, or New Lessee has incurred
any liability to any broker, finder or agent for any brokerage
fees, finder's fees or commissions with respect to the
transactions contemplated by this Agreement.
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2.2.5 Leases. The execution and delivery of the
Consolidated Leases and the performance by the Partnership and
Additional Lessee of the transactions contemplated thereby to
be performed by the Partnership and Additional Lessee have
been duly authorized by all necessary action on the part of
the Partnership and Additional Lessee. Upon execution and
delivery of the Consolidated Leases by the Partnership or
Additional Lessee, as the case may be, and EIP or Additional
Lessor, as the case may be, the Consolidated Leases will
constitute a valid and binding obligation of the Partnership
or Additional Lessee, as the case may be, enforceable in
accordance with its terms.
2.2.6 IHC Guarantees. [Unchanged from Original
Master Agreement]
2.2.7 Real Property. IHC, the Partnership,
Additional Lessee and New Lessee have had access to such
deeds, title policies, environmental reports, structural or
other engineering reports and surveys with respect to the
Current Hotels as IHC, the Partnership, Additional Lessee or
New Lessee has deemed necessary to its review.
2.2.8 Litigation; Decrees. To the knowledge of IHC,
New Lessee, Additional Lessee or the Partnership, there are no
lawsuits, claims, administrative or other proceedings pending
or threatened which seek to enjoin or otherwise affect the
transactions contemplated by this Agreement, the Contribution
Agreement or the Consolidated Leases.
j. Section 5.2 of the Original Master Agreement shall be
deleted in its entirety and the following substituted therefor:
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5.2 Indemnification. (a) Subject to Section 5.1,
XXXX, EIP, and Additional Lessor will indemnify, defend and
hold harmless the Partnership, Additional Lessee, New Lessee,
IHC and its respective directors, officers, partners,
employees, agents and representatives from and against any and
all Indemnifiable Losses relating to, resulting from or
arising out of:
(i) Any breach by EIP, Additional Lessor, or
XXXX of any of the representations or warranties of
EIP, Additional Lessor, or XXXX contained in this
Agreement or in any Sales Agreement;
(ii) Any breach by EIP, Additional Lessee,
or XXXX of any covenant of EIP, Additional Lessor or
XXXX contained in this Agreement;
(iii) Any Third Party Claim relating to or
arising out of the ownership (but not the operation
or management) of the Current Hotels on or prior to
the Closing Date;
(iv) The 1934 Act reports or the 1933 Act
registration statements of XXXX, EIP, or the
Additional Lessor, other than Indemnifiable Losses
arising out of inaccurate information provided to
EIP, Additional Lessor or XXXX by the Partnership,
Additional Lessee, or New Lessee; and/or
(v) Any and all violations of the ADA other
than those caused by the Partnership's, Additional
Lessee's, New Lessee's or IHC's negligence or willful
misconduct.
Notwithstanding the foregoing provisions of this Section
5.2(a) to the contrary, Additional Lessor's obligations to indemnify,
defend or hold harmless shall be limited
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to those instances in which Additional Lessor itself was in breach or
otherwise at fault as described above.
(b) Subject to Section 5.1, the Partnership,
Additional Lessee, New Lessee and IHC will indemnify, defend
and hold harmless EIP, Additional Lessor, XXXX and their
respective Affiliates, directors, officers, partners,
employees, agents and representatives from and against any and
all Indemnifiable Losses relating to, resulting from or
arising out of any of the following:
(i) Any breach by the Partnership,
Additional Lessee, New Lessee or IHC of any of the
representations or warranties of Partnership,
Additional Lessee, New Lessee or IHC contained in
this Agreement or in any Sales Agreement; and/or
(ii) Any breach by Partnership, Additional
Lessee, New Lessee or IHC of any covenant of
Partnership, Additional Lessee, New Lessee or IHC
contained in this Agreement.
Notwithstanding the foregoing provisions of this
Section 5.2(b) to the contrary, Additional Lessee's
obligations to indemnify, defend or hold harmless shall be
limited to those instances in which Additional Lessee itself
was in breach or otherwise at fault as described above.
k. Section 6.1 of the Original Master Agreement shall be
amended such that notices made to the Additional Lessee shall be made
in the same manner in which notices are required to be made to the
Partnership and notices made to the Additional Lessor shall be made in
the same manner in which notices are required to be made to EIP.
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l. Section 6.2 of the Original Master Agreement shall be
deleted in its entirety and the following substituted therefor:
6.2 Successors and Assigns. This Agreement will
be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. This
Agreement may not be assigned by IHC, New Lessee, the
Partnership or Additional Lessee and the Leases may not be
assigned by New Lessee, the Partnership or Additional Lessee
without the prior written consent of EIP, Additional Lessor
and XXXX (except to an entity under the control of (i) IHC or
Company, (ii) the then senior management of IHC, or (iii)
Crossroads Hospitality Company, L.L.C., provided that in
connection with any such transaction, any transferee,
assignee, successor in interest to IHC, New Lessee, the
Partnership or Additional Lessee agrees in writing with EIP,
Additional Lessor and XXXX to assume all of IHC's, New
Lessee's, the Partnership's, and Additional Lessee's
obligations hereunder). During the term of the Leases, IHC,
New Lessee, the Partnership and Additional Lessee agree that
there will be no change in control of New Lessee, Additional
Lessee or the Partnership (except to an entity under the
control of (i) IHC or Company, (ii) the then senior management
of IHC, or (iii) Crossroads Hospitality Company L.L.C.) and
any such change in control shall be deemed an assignment of
the Leases and this Agreement and which shall require the
prior written consent of EIP, Additional Lessor and XXXX. In
no event shall a change in control, merger, consolidation
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or sale of all or substantially all of the assets of IHC or
Company or any successor be deemed to be an assignment
hereunder or under the Leases.
m. Section 6.3 of the Original Master Agreement shall be
deleted in its entirety and the following substituted therefor:
6.3 Waiver. IHC, New Lessee, the Partnership and
Additional Lessee, on the one hand, and XXXX, EIP and
Additional Lessor on the other hand, by written notice to the
other may (a) extend the time for performance of any of the
obligations or other actions of the other under this
Agreement, (b) waive any inaccuracies in the representations
or warranties of the other contained in this Agreement, (c)
waive compliance with any of the conditions or covenants of
the other contained in this Agreement, or (d) waive or modify
performance of any of the obligations of the other under this
Agreement; provided, however, that no such party may, without
the prior written consent of such other party, make or grant
such extension of time, waiver of inaccuracies or compliance
or waiver or modification of performance with respect to its
(or any of its Affiliates') representations, warranties,
conditions or covenants hereunder. Except as provided in the
immediately preceding sentence, no action taken pursuant to
this Agreement will be deemed to constitute a waiver of
compliance with any representations, warranties or covenants
contained in this Agreement and will not operate or be
construed as a waiver of any subsequent breach, whether of a
similar or dissimilar nature.
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n. Section 6.9 of the Original Master Agreement shall be
deleted in its entirety and the following substituted therefor:
6.9 Applicable Law. This Agreement and the legal
relations among the parties hereto will be governed by and
construed in accordance with the substantive Laws of the
Commonwealth of Pennsylvania, without giving effect to the
principles of conflict of laws thereof. Any action arising
out of this Agreement may be brought in the state or federal
courts of Pennsylvania or Tennessee. The parties hereby
irrevocably submit to the exclusive jurisdiction of the
appropriate state or federal court in Pennsylvania for the
purpose of any suit, action, proceeding or judgement relating
to or arising out of this Agreement. Each of the Partnership,
IHC, New Lessee, Additional Lessee, XXXX, Additional Lessor
and EIP further agrees that service of any process, summons,
notice or document by U.S. registered mail to such party's
respective address set forth above shall be effective service
of process for any action, suit or proceeding in Pennsylvania
with respect to any matters to which it has submitted to
jurisdiction as set forth above in the immediately preceding
sentence. Each of the Partnership, New Lessee, IHC,
Additional Lessee, XXXX, Additional Lessor and EIP irrevocably
and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in (a) the
Supreme Court of the Commonwealth of Pennsylvania or the State
of Tennessee, or (b) the United States District Court for the
Western District of Pennsylvania or Tennessee, and hereby
further irrevocably
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and unconditionally waives and agrees not to plead or claim in
any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum. The parties hereto unconditionally waive any right to
a jury trial for any action, suit or proceeding arising out of
this Agreement or the transactions contemplated hereby.
o. Section VII of the Original Master Agreement shall be
amended hereby as follows:
(a) the definition of "Leases" shall be deleted
in its entirety and the following substituted therefor:
"Leases" shall mean the Consolidated Lease
Amendment (as amended), the Successor Consolidated
Lease Amendment and/or any lease of a hotel or motel
entered into by and between EIP or an Affiliate of
EIP and Partnership or New Lessee or an Affiliate of
IHC.
(b) the term "Transfer Hotels" shall be added and
defined as follows:
"Transfer Hotels" shall mean those 23 Current
Hotels transferred from EIP to the Additional Lessor
and identified as "Transfer Hotels" on Exhibit A to
the Second Amendment.
(c) the term "Remaining Hotels" shall be added
and defined as follows:
"Remaining Hotels" shall mean those 25
Current Hotels not transferred by EIP to the
Additional Lessor and identified as "Remaining
Hotels" on Exhibit A to the Second Amendment.
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* * *
As amended hereby, the Original Master Agreement is ratified,
confirmed and approved.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EQUITY INNS, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EQUITY INNS PARTNERSHIP, L.P.
By: Equity Inns Trust
general partner
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EQI FINANCING PARTNERSHIP I, L.P.
By: EQI Financing Corporation,
general partner
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SIGNATURES CONTINUED ON NEXT PAGE
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INTERSTATE HOTELS CORPORATION
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
CROSSROADS/MEMPHIS PARTNERSHIP, L.P.
By: Crossroads/Memphis Company, L.L.C.,
General Partner
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
CROSSROADS/MEMPHIS FINANCING
COMPANY, L.L.C.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
CROSSROADS FUTURE COMPANY, L.L.C.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SIGNATURES CONTINUED ON NEXT PAGE
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EQUITY INNS/WEST VIRGINIA
PARTNERSHIP, L.P.
By: Equity Inns Services, Inc.,
General Partner
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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EXHIBIT A
EXISTING LEASE
CURRENT HOTELS
Franchise and City/ Transfer Remaining
State Location Hotel Hotel
--------------------- ------- ---------
HAMPTON INN HOTELS
Albany, NY X
College Station, TX X
Louisville, KY X
Columbus, GA X
Cleveland, OH X
Sarasota, FL X
Fort Worth, TX X
Little Rock, AR X
Ann Arbor, MI X
Traverse City, MI X
Chicago (Gurnee), IL X
Dallas (Arlington), TX X
Milford, CT X
Meriden, CT X
Beckley, WV X
Gastonia, NC X
Morgantown, WV X
Shelby, NC X
Chicago (Naperville), IL X
State College, PA X
Cleveland, TN X
Scranton, PA X
Jacksonville, FL X
Fayetteville, NC X
Indianapolis, IN X
Austin, TX X
Dallas (Garland), TX X
Knoxville (Alcoa), TN X
Baltimore (Xxxx Burnie), MD X
Detroit (Northville), MI X
Scottsdale, AZ X
Chattanooga, TN X
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Franchise and City/ Transfer Remaining
State Location Hotel Hotel
--------------------- ------- ---------
RESIDENCE INN HOTELS
Minneapolis (Eagan), MN X
Tinton Falls, NJ X
Omaha, NE X
Burlington, VT X
Madison, WI X
HOLIDAY INN HOTELS
Bluefield, WV X
Oak Hill, WV X
Charleston (Mt. Pleasant), SC X
Winston-Salem, NC X
HOLIDAY INN EXPRESS HOTELS
Wilkesboro, NC X
COMFORT INN HOTELS
Enterprise, AL X
Rutland, VT X
Jacksonville Beach, FL X
HOMEWOOD SUITES HOTEL
Hartford (Windsor Locks), CT X
San Antonio, TX X
Phoenix (Camelback), AZ X
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