EXHIBIT 10.2
Loan Nos. 00-0000000
00-0000000
00-0000000
AGREEMENT REGARDING INDENTURE AND MORTGAGES
This AGREEMENT REGARDING INDENTURE AND MORTGAGES (this "Agreement") is
made as of January 1, 2001 between LASALLE BANK NATIONAL ASSOCIATION (f/k/a
LaSalle National Bank), as Indenture Trustee for EQI FINANCING PARTNERSHIP
I, L.P. COMMERCIAL MORTGAGE BONDS, SERIES 1997-1 (ALender@), and EQI
FINANCING PARTNERSHIP I, L.P., a Tennessee limited partnership (the
ABorrower@).
RECITALS
WHEREAS, Borrower is the owner of a fee estate in twenty-one various
hotel properties listed in Exhibit "A", which Exhibit is attached hereto
and made a part hereof by this reference (collectively, the AProperty@),
and the hotels (collectively, the AHotels) located on the Property;
WHEREAS, Lender is the indenture trustee under an indenture dated
February 6, 1997 (the AIndenture@) under which Borrower has issued certain
bonds (the ABonds@);
WHEREAS, the Bonds are secured by various mortgages, deeds of trust,
deeds to secure debt and similar instruments in favor of Lender (the
AExisting Mortgages@) encumbering the Property, which Existing Mortgages
are identified in Exhibit "B" attached hereto and made a part hereof by
this reference. The Existing Mortgages and any other documents now and
hereafter evidencing, securing or otherwise relating to the Bonds are
hereinafter collectively referred to as the ASecurity Documents@;
WHEREAS, pursuant to a certain Consolidated Lease Amendment dated
November 15, 1996, as amended by a certain Successor Consolidated Lease
Amendment dated February 6, 1997 (collectively and as so modified and
amended, the AOriginal Leases@), Crossroads/Memphis Financing Company,
L.L.C. (AOriginal Lessee@) had leased the Premises from Borrower;
WHEREAS, the Original Leases have been terminated, and Borrower and ENN
Leasing Company I, L.L.C., a Delaware limited liability company (ATenant@)
have entered into a Consolidated Lease Agreement of even date herewith
(hereinafter referred to as the XXxxxx@), pursuant to which Tenant has
leased the Property from Borrower;
WHEREAS, Lender, Tenant and Borrower have entered into a Consolidated
Lease Estoppel and Subordination Agreement (hereinafter referred to as the
"Lease Subordination"),
dated of even date herewith, pursuant to which the Lease is subordinated to
the Existing Mortgages;
WHEREAS, Tenant has entered into certain management agreements of even
date herewith providing for the provision of management services to Tenant
with respect to the Hotels (each such management agreement is individually
referred to herein as a AManagement Agreement@ and collectively as the
AManagement Agreements@ and each manager under a Management Agreement is
individually referred to herein as a AManager@ and collectively as the
AManagers@);
WHEREAS, each Manager and Tenant have entered into a separate
assignment and subordination of management agreement (each such agreement
is individually referred to herein as a "Management Agreement
Subordination" and collectively as the "Management Agreement
Subordinations"), dated of even date herewith, in favor of Lender pursuant
to which the Management Agreements have been subordinated to the Existing
Mortgages;
WHEREAS, Tenant, Lender and Borrower have entered into a Security and
Lockbox Agreement (hereinafter referred to as the "Lockbox Agreement"),
dated of even date herewith, to provide for the payment of cash amounts
otherwise due Tenant to a bank account controlled by or maintained for the
benefit of Midland Loan Services, Inc. ("Servicer"), acting as Agent for
Lender, as more particularly provided in the Lockbox Agreement;
WHEREAS, in connection with the execution of the Lease, Lender desires
that the Borrower and Tenant enter into this Agreement, in accordance with
the terms of the Existing Mortgages and the Indenture, to clarify certain
defined terms and provisions contained in the Security Documents that
reference the Original Lease and to include references to the Lockbox
Agreement, the Lease Subordination, and the Management Agreement
Subordinations;
NOW, THEREFORE, in consideration of the premises and the due
performance of the commitments and agreements hereinafter set forth, and
other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Undefined capitalized terms used in this Agreement
shall have the same meaning given such terms in the Security Documents.
2. Existing Mortgages. Lender and Borrower hereby agree that
certain terms and provisions of the Existing Mortgages shall be clarified
from and after the date hereof as follows:
(a) Section 5.16(b) of the Existing Mortgages shall be deemed to state,
from and after the date hereof, as follows, for purposes of incorporating
the form of subordination agreement applicable to the Management
Agreements:
"(b) such replacement lessee executes an agreement substantially
similar to the Subordination Agreement and such replacement
manager executes an agreement substantially similar to the
Management Agreement Subordination."
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(b) Section 5.21(a) of the Existing Mortgages shall be deemed to state,
from and after the date hereof, as follows, for purposes of conforming to
the terms of the new Lease.
"The Beneficiary acknowledges that the Borrower is a party to
a lease agreement (the "Lease") with Lessee, pursuant to which the
entire Mortgaged Property has been leased to the Lessee. The Borrower
represents and warrants that it has not entered into any lease or
occupancy agreement of any kind or nature with respect to the Mortgaged
Property other than the Lease. The Borrower shall not amend or modify
the Lease or cancel or terminate the Lease (except in connection with a
Lease Event of Default or a termination otherwise expressly permitted
under the Lease) without the prior written consent of the Beneficiary,
which consent will be given upon confirmation from the Rating Agency
that such action will not cause a qualification, withdrawal or
downgrading of the ratings then maintained by the Rating Agency with
respect to the Bonds. To the extent any obligation of the Borrower
hereunder is an obligation to be performed by the Lessee under the
Lease, the Borrower shall fulfill such obligation by causing the Lessee
to perform such obligations."
3. Indenture. Lender and Borrower hereby agree that certain terms
and provisions of the Indenture shall be clarified from and after the date
hereof as follows:
(a) Any references in Section 5.21 of the Indenture to the "Comfort
Letter" attached as Exhibit J to the Indenture shall be deemed to refer,
from and after the date hereof, to the forms of comfort letters attached
hereto as Exhibit "C".
(b) The Glossary of terms attached to the Indenture shall incorporate,
from and after the date of this Agreement, the following new definitions of
existing defined terms, and the defined terms existing prior to the date
hereof shall no longer be in full force and effect:
"'Lease' shall mean, with respect to each Mortgaged Property,
the agreement pursuant to which the Borrower rents and leases to the
Lessee and the Lessee rents and leases from the Borrower, such
Mortgaged Property, which agreement is evidenced by a Consolidated
Lease Agreement, dated as of January 1, 2001, between Borrower and
Lessee embodying the Lease for each of the Mortgaged Properties.
'Lessee' shall mean ENN Leasing Company I, L.L.C.
'Loan Documents' shall mean the Mortgages, the Subordination
Agreement, the Indenture, the Bonds, the Lockbox Agreement, the
Management Agreement Subordination, and all other agreements,
instruments, certificates and documents (including all Uniform
Commercial Code financing statements) delivered by or on
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behalf of the Borrower or its Affiliates to evidence or secure the
Bonds or otherwise in satisfaction of the requirements of documents
identified above.
'Subordination Agreement' shall mean the Consolidated Lease
Estoppel and Subordination Agreement, dated as of January 1, 2001,
among the Lessee, the Issuer and the Indenture Trustee.
'Management Agreement' shall mean the management agreements
between Lessee and the Manager relating to the management and operation
of the Hotels by the Manager.
'Manager' shall mean, individually and collectively,
Crossroads Hospitality Company, L.L.C., a Delaware limited liability
company, Crestline Hotels & Resorts, Inc., a Delaware corporation, and
Promus Hotels, Inc., a Delaware corporation, or any substitute manager
approved by Beneficiary in accordance with the terms and conditions of
the applicable Mortgage."
(c) The Glossary of terms attached to the Indenture shall incorporate
the following new defined terms:
"'Lockbox Agreement' shall mean the Security and Lockbox
Agreement, dated as of January 1, 2001, executed by Lessee, Issuer and
Indenture Trustee.
'Management Agreement Subordination' shall mean, individually
and collectively, the Assignment and Subordination of Management
Agreements, dated as of January 1, 2001, executed by Lessee and each
Manager in favor of Indenture Trustee."
4. Representations and Warranties. Borrower represents and warrants
to Lender as follows:
(a) Borrower has made available to Lender a correct and complete copy
of the Lease and all amendments thereto. As of the date hereof, the Lease
is unmodified and in full force and effect and Borrower is not, and, to
Borrower's knowledge, Tenant is not in default under the Lease.
(b) As of the date hereof, the Management Agreements applicable to each
of the Mortgaged Properties are unmodified and in full force and effect and
Borrower is not, and, to Borrower's knowledge, the Lessee is not in default
under the Management Agreements.
(c) The execution, delivery and performance of this Agreement and the
transactions contemplated hereby (i) are within the authority of Borrower,
(ii) have been duly authorized by all necessary proceedings on the part of
Borrower, (iii) do not and will not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation to
which Borrower is subject or any judgment, order, writ, injunction,
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license or permit applicable to Borrower, (iv) do not and will not conflict
with or constitute a default (whether with the passage of time or the
giving of notice, or both) under any provision of the organizational
documents of Borrower, or any agreement, contract or other instrument
binding upon Borrower or any of its properties or to which Borrower is
subject, and (v) do not and will not result in or require the imposition of
any lien or other encumbrance on any of the properties, assets or rights of
Borrower, other than the liens and encumbrances created by the Security
Documents.
(d) This Agreement constitutes the valid and legally binding
obligations of Borrower enforceable in accordance with the respective terms
and provisions hereof.
(e) The execution, delivery and performance of this Agreement and the
transactions contemplated hereby do not require the approval or consent of
Borrower, its general and limited partners and their partners, directors
and shareholders, or the authorization, consent, or approval of or any
license or permit issued by, or any filing or registration with, or the
giving of any notice to, any court, department, board, commission or other
governmental agency or authority other than those already obtained.
5. Ratification. Except as hereinabove set forth, all terms, covenants
and provisions of the Security Documents remain unaltered and in full force
and effect, and the parties hereto do hereby expressly ratify and confirm
the Security Documents as clarified herein. Nothing in this Agreement shall
be deemed or construed to constitute, and there has not otherwise occurred,
a novation, cancellation, satisfaction, release, extinguishment or
substitution of the indebtedness evidenced by the Indenture or the other
obligations of Borrower under the Security Documents.
6. Expenses. All expenses, including without limitation, reasonable
legal fees, incurred by Lender in connection with the preparation,
negotiation and closing of this Agreement and the transactions contemplated
hereby shall be paid by Borrower.
7. Counterparts. This Agreement may be executed in any number of
counterparts which shall together constitute but one and the same
agreement.
8. Recording. Borrower hereby agrees that this Agreement may be
recorded at any time in the jurisdictions where the Existing Mortgages were
recorded, in Lender's sole discretion, following an Event of Default or at
any time that Lender believes in its reasonable business judgment that
recording is necessary (a) to comply with the requirements of applicable
law, (b) to properly maintain its collateral, or (c) as otherwise required
to be consistent with sound servicing practices and standards. Any
recording or filing fees incurred as a result thereof shall be the
responsibility of Borrower.
9. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the state of New York, except that at all times
any provisions herein relating to or affecting the Existing Mortgages shall
be governed by and construed
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in accordance with the laws of the state in which the Property relating to
such Existing Mortgage is located.
10. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
permitted successors, successors-in-title and assigns as provided in the
Security Documents.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of the day and year first above written.
BORROWER:
EQI FINANCING PARTNERSHIP I, L.P.
By: EQI Financing Corporation, its general
partner
By: /S/ Xxxxxx X. Silver
-------------------------------------
Name: Xxxxxx X. Silver
-------------------------------------
Title: President
-------------------------------------
LENDER:
LASALLE BANK NATIONAL ASSOCIATION (f/k/a
LaSalle National Bank), as Indenture Trustee
for EQI FINANCING PARTNERSHIP I, L.P.
COMMERCIAL MORTGAGE BONDS, SERIES 1997-1
BY: MIDLAND LOAN SERVICES, INC., a Delaware
corporation, its attorney-in-fact
By: /s/ X.X. Xxxxxx
-------------------------------------
Name: X.X. Xxxxxx
-------------------------------------
Title: E.V.P. and Servicing Officer
-------------------------------------
EXHIBIT "A"
The Property
Hampton InnCSarasota, FL
Hampton InnCFt. Worth, TX
Hampton InnCChicago (Gurnee), IL
Hampton InnCKnoxville (Alcoa, TN
Hampton InnCAnn Arbor, MI
Comfort InnCJacksonville Beach, FL
Hampton InnCMilford, CT
Hampton InnCChicago (Naperville), IL
Holiday InnCCharleston (Mt. Pleasant), SC
Hampton InnCLouisville, XX
Xxxxxxx InnCJacksonville, FL
Hampton InnCMeriden, CT
Hampton InnCIndianapolis, IN
Hampton InnCCleveland (Westlake), OH
Hampton InnCCollege Station, TX
Hampton InnCAustin, TX
Hampton InnCFayetteville, NC
Holiday InnCWinston-Salem, NC
Residence InnCOmaha, NE
Hampton InnCGastonia, NC
Hampton InnCColumbus, GA
EXHIBIT "B"
The Existing Mortgages
The Following Existing Mortgages, dated as of February 6, 1997, by EQI
Financing Partnership I, L.P., as Borrower, to and for the benefit of
LaSalle National Bank, the indenture trustee, as Beneficiary:
1. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Hampton Inn Sarasota, FL
2. Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Fixture Filing Statement for Hampton Inn Ft. Worth, TX
3. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Hampton Inn Chicago (Gurnee), IL
4. Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Fixture Filing Statement for Hampton Inn Knoxville (Alcoa),
TN
5. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Hampton Inn Ann Arbor, MI
6. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Comfort Inn Jacksonville Beach, FL
7. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Hampton Inn Milford, CT
8. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Hampton Inn Chicago (Naperville), IL
9. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Holiday Inn Charleston (Mt.
Pleasant), SC
10. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Hampton Inn Louisville, KY
11. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Hampton Inn Jacksonville, FL
12. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Hampton Inn Meriden, CT
13. Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing Statement for Hampton Inn Indianapolis, IN
14. Open-End Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing Statement for Hampton Inn Cleveland
(Westlake), OH
15. Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Fixture Filing Statement for Hampton Inn College Station, TX
16. Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Fixture Filing Statement for Hampton Inn Austin, TX
17. Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Fixture Filing Statement for Hampton Inn Fayetteville, NC
18. Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Fixture Filing Statement for Holiday Inn Winston-Salem, NC
19. Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Fixture Filing Statement for Residence Inn Omaha, NE
20. Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Fixture Filing Statement for Hampton Inn Gastonia, NC
21. Deed to Secure Debt, Assignment of Leases and Rents, Security
Agreement and Fixture Filing Statement for Hampton Inn Columbus,
GA
[Copies of the Existing Mortgages omitted for purposes of this filing]
