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EXHIBIT 10.2
AGREEMENT TO LEASE
THIS AGREEMENT TO LEASE (this "Agreement") is entered into as of June
29, 1999, by and between HPT SUITE PROPERTIES TRUST, a Maryland real estate
investment trust (the "Landlord"), and SUITE TENANT, INC., a Tennessee
corporation (the "Tenant").
W I T N E S S E T H:
WHEREAS, pursuant to a Purchase and Sale Agreement, dated as of the
date hereof (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Purchase Agreement"), by and among the Landlord
and ShoLodge, Inc., a Tennessee corporation ("Sho"), and certain of its wholly
owned subsidiaries, the Landlord is planning to acquire six Xxxxxx Suite hotel
properties, as more particularly described in the Purchase Agreement; and
WHEREAS, the Landlord and the Tenant previously entered into a Lease
Agreement, dated as of November 19, 1997, as amended by First Amendment to Lease
Agreement, dated as of March 5, 1999 (as so amended, the "Lease"); and
WHEREAS, the Tenant is a wholly owned subsidiary of Sho; and
WHEREAS, subject to and upon the terms and conditions set forth in this
Agreement, pursuant to a Second Amendment to Lease Agreement and First Amendment
to Incidental Documents in the form attached hereto as Exhibit A (the
"Amendment"), the Landlord and the Tenant wish to amend the Lease to include the
properties covered by the Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. AGREEMENT TO LEASE. Subject to and upon the terms and conditions
hereinafter set forth, on the date on which the Landlord acquires fee simple
title to each of the Properties (this and other capitalized terms used and not
otherwise defined herein having the meaning ascribed to such terms in the
Purchase Agreement and/or the Lease), the Landlord and the Tenant shall each
execute and deliver the Amendment.
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2. REPRESENTATIONS OF THE TENANT, ETC. As an inducement to the Landlord
to enter into the Amendment, the Tenant shall represents and warrants to the
Landlord, as of the Closing Date, that:
(a) STATUS AND AUTHORITY OF THE TENANT, ETC. The Tenant is a
corporation duly organized and validly existing under the laws of its state of
incorporation and has all requisite power and authority (corporate and other)
under the laws of such state and its respective charter documents to own its
property and assets, to enter into and to perform its obligations under the
Lease, as amended by the Amendment (as so amended, the "Amended Lease"), and to
transact the business in which it is engaged or presently proposes to engage.
The Tenant is duly qualified in each jurisdiction in which the nature of the
business conducted or to be conducted by it requires such qualification, except
where failure to do so could not reasonably be expected to have a material
adverse effect.
(b) CORPORATE ACTION OF THE TENANT, ETC. The Tenant has taken all
necessary action (corporate or other) under its charter documents to authorize
the execution and delivery of the Amended Lease and the performance of the
Amended Lease, and the Amended Lease constitutes the valid and binding
obligation and agreement of the Tenant enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization or similar laws of
general application affecting the rights and remedies of creditors.
(c) NO VIOLATIONS OF OTHER AGREEMENTS, ETC. Neither the execution and
delivery of the Amended Lease by the Tenant, nor compliance with the terms and
provisions thereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of the
Tenant pursuant to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness, agreement or other instrument to which the Tenant may
be a party or by which it or its property is bound, or violate any provisions of
laws, or any applicable order, writ, injunction, judgment or decree of any
court, or any order or other public regulation of any governmental commission,
bureau or administrative agency.
(d) JUDGMENTS; LITIGATION. There are no judgments presently outstanding
and unsatisfied against the Tenant or any of its properties, and none of the
Tenant or any of its properties are involved in any material litigation at law
or in
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equity, or any proceeding before any court, or by or before any governmental or
administrative agency, which litigation or proceeding could materially and
adversely affect the Tenant, and no such material litigation or proceeding is,
to the knowledge of the Tenant, threatened against the Tenant, and no
investigation looking toward such a proceeding has begun or is contemplated.
(e) DISCLOSURE. To the knowledge of the Tenant, neither this Agreement
nor any other document, certificate or statement furnished to the Landlord by or
on behalf of the Tenant in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein or therein not
misleading. To the knowledge of the Tenant, there is no fact or condition which
materially and adversely affects the business, operations, affairs, properties
or condition of the Tenant which has not been set forth in this Agreement or in
the other documents, certificates or statements furnished to the Landlord in
connection with the transactions contemplated hereby.
The Tenant's liability with respect to the representations and
warranties set forth in this Agreement shall survive indefinitely.
3. REPRESENTATIONS OF THE LANDLORD. As an inducement to the Tenant to
enter into the Amendment, the Landlord represents to the Tenant, as of the
Closing Date, that:
(a) STATUS AND AUTHORITY OF THE LANDLORD. The Landlord is a Maryland
real estate investment trust duly organized, validly existing and in trust good
standing under the laws of the State of Maryland, and has all requisite power
and authority under the laws of such state and under its charter documents to
enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. The Landlord has duly qualified and is in
good standing as a trust or unincorporated business association in each
jurisdiction in which the nature of the business conducted by it requires such
qualification, except where failure to do so could not reasonably be expected to
have a material adverse effect.
(b) ACTION OF THE LANDLORD. The Landlord has taken all necessary action
to authorize the execution and delivery of the Amended Lease and the performance
of the Amended Lease, and the Amended Lease constitutes the valid and binding
obligation and agreement of the Landlord, enforceable against the Landlord in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or
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similar laws of general application affecting the rights and remedies of
creditors.
(c) NO VIOLATIONS OF AGREEMENTS. Neither the execution and delivery of
the Amended Lease or the performance of the Amended Lease by the Landlord, nor
compliance with the terms and provisions hereof or thereof, will result in any
breach of the terms, conditions or provisions of, or conflict with or constitute
a default under, or result in the creation of any lien, charge or encumbrance
upon any property or assets of the Landlord pursuant to the terms of any
indenture, mortgage, deed of trust, note, evidence of indebtedness or any other
agreement or instrument by which the Landlord or its property is bound, or
violate any provisions of laws, or any applicable order, writ, injunction,
judgment or decree of any court, or any order or other public regulation of any
governmental commission, bureau or administrative agency.
(d) JUDGMENTS; LITIGATION. There are no judgments presently outstanding
and unsatisfied against the Landlord or any of its properties, and neither the
Landlord nor any of its properties are involved in any material litigation at
law or in equity, or any proceeding before any court, or by or before any
governmental or administrative agency, which litigation or proceeding could
materially and adversely affect the Landlord, and no such material litigation or
proceeding is, to the knowledge of the Landlord, threatened against the
Landlord, and no investigation looking toward such a proceeding has begun or is
contemplated.
The Landlord's liability with respect to the representations and
warranties set forth in this Agreement shall survive indefinitely.
4. CONDITION PRECEDENT. The obligations of the parties hereunder shall
be subject to the consummation of the transactions contemplated by the Purchase
Agreement.
5. NOTICES. All notices required or desired to be given hereunder
shall be given in the manner provided in Section 11.4 of the Purchase Agreement.
6. ASSIGNMENT. The Tenant shall not assign or transfer, directly or
indirectly, its rights under this Agreement without the prior written consent of
the Landlord, which consent may be given or withheld by the Landlord in the
Landlord's sole discretion. The Landlord shall not assign or transfer, directly
or indirectly, its rights under this Agreement other than to a
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wholly owned subsidiary of the Landlord without the prior written consent of the
Tenant, which consent may be given or withheld by the Tenant in the Tenant's
sole discretion.
7. DEFAULT.
(a) DEFAULT BY THE TENANT. If the Tenant shall fail to perform any of
the covenants and agreements contained herein to be performed by the Tenant and
such failure continues for a period of ten (10) days after notice thereof from
the Landlord, the Landlord may terminate this Agreement and/or pursue any and
all remedies available to the Landlord at law or in equity, including, but not
limited to, a suit for specific performance or other equitable relief. A default
by the ShoLodge Parties under the Purchase Agreement shall be deemed a default
by the Tenant under this Agreement.
(b) DEFAULT BY THE LANDLORD. If the Landlord shall fail to perform any
of the covenants and agreements contained herein to be performed by it and such
failure shall continue for a period of ten (10) days after notice thereof from
the Tenant, the Tenant may terminate this Agreement and/or pursue any and all
remedies available to the Tenant at law or in equity, including, but not limited
to, a suit for specific performance or other equitable relief. A default by the
Purchaser under the Purchase Agreement shall be deemed a default by the Landlord
under this Agreement.
8. MISCELLANEOUS.
(a) EXPENSES. The Tenant shall pay its and the Landlord's expenses
incident to the negotiation, preparation and carrying out of this Agreement,
including, without limitation, all reasonable fees and expenses of the
Landlord's counsel. The Tenant shall also pay the cost of all recording fees,
transfer fees and other like costs and expenses incident to this Agreement.
(b) PUBLICITY. The parties agree that no party shall, with respect to
this Agreement and the transactions contemplated hereby, contact or conduct
negotiations with public officials, make any public pronouncements, issue press
releases or otherwise furnish information regarding this Agreement or the
transactions contemplated to any third party without the consent of the other
party, which consent shall not be unreasonably withheld, delayed or conditioned,
except as required by law or unless such action is taken based on advice of
counsel given in good faith. No party or its employees shall trade in the
securities of Hospitality Properties Trust or ShoLodge, Inc. until a public
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announcement of the transactions contemplated by this Agreement has been made.
(c) PERFORMANCE ON BUSINESS DAYS. In the event the date on which
performance or payment of any obligation of a party required hereunder is other
than a Business Day, the time for payment or performance shall automatically be
extended to the first Business Day following such date.
9. APPLICABLE LAW, ETC. This Agreement shall be interpreted, construed,
applied and enforced in accordance with the laws of The Commonwealth of
Massachusetts applicable to contracts between residents of Massachusetts which
are to be performed entirely within Massachusetts, regardless of (i) where this
Agreement is executed or delivered; or (ii) where any payment or other
performance required by this Agreement is made or required to be made; or (iii)
where any breach of any provision of this Agreement occurs, or any cause of
action otherwise accrues; or (iv) where any action or other proceeding is
instituted or pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or domestication of any
party; or (vi) whether the laws of the forum jurisdiction otherwise would apply
the laws of a jurisdiction other than The Commonwealth of Massachusetts; or
(vii) any combination of the foregoing.
To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the provisions of
this Agreement may be brought and prosecuted in such court or courts located in
The Commonwealth of Massachusetts as is provided by law; and the parties consent
to the jurisdiction of said court or courts located in The Commonwealth of
Massachusetts and to service of process by registered mail, return receipt
requested, or by any other manner provided by law.
10. MODIFICATION OF AGREEMENT. No modification or waiver of any
provision of this Agreement, nor any consent to any departure by any party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the other, and such modification, waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any party in any case shall entitle such party to any
other or further notice or demand in the same, similar or other circumstances.
11. WAIVER OF RIGHTS. Neither any failure nor any delay on the part
of any party in exercising any right, power, or
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privilege under this Agreement shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise or the
exercise of any right, power or privilege.
12. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and this
Agreement shall thereupon be reformed and construed and enforced to the maximum
extent permitted by laws.
13. ENTIRE CONTRACT. This Agreement, including all annexes and exhibits
hereto, constitutes the entire agreement between the parties hereto with respect
to the subject matter hereof and thereof and shall supersede and take the place
of any other instruments purporting to be an agreement of the parties hereto
relating to the transactions contemplated hereby, including, without limitation,
any letter of intent or commitment letter.
14. COUNTERPARTS; HEADINGS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but which, when
taken together, shall constitute but one instrument and shall become effective
as of the date hereof when copies hereof, which, when taken together, bear the
signatures of each of the parties hereto shall have been signed. Headings in
this Agreement are for purposes of reference only and shall not limit or affect
the meaning of the provisions hereof.
15. BINDING EFFECT. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
16. NONLIABILITY OF TRUSTEES, ETC. THE DECLARATION OF TRUST
ESTABLISHING THE LANDLORD, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO
(THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HPT SUITE PROPERTIES
TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF THE LANDLORD SHALL BE HELD TO ANY PERSONAL LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE LANDLORD. ALL
PERSONS DEALING WITH THE LANDLORD, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF
THE LANDLORD FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
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IN WITNESS WHEREOF, the Landlord and the Tenant have executed this
Agreement under seal as of the date above first written.
HPT SUITE PROPERTIES TRUST
By: /S/ Xxxx X. Xxxxxx
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Its President
SUITE TENANT, INC.
By: /S/ Xxxx Xxxxx
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Its President
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EXHIBIT A
FORM OF AMENDMENT
[See attached copy.]
