EXHIBIT 10.5
LEASE AGREEMENT
Dated as of November 19, 1997
By and Between
HPT SUITE PROPERTIES TRUST,
AS LANDLORD,
AND
SUITE TENANT, INC.,
AS TENANT
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS...........................................................................................1
1.1 Accounting Period.........................................................................1
1.2 Additional Charges .......................................................................2
1.4 Affiliated Person ........................................................................2
1.5 Agreement ................................................................................2
1.6 Applicable Laws ..........................................................................2
1.7 Applicable Percentage ....................................................................2
1.8 Award ....................................................................................3
1.9 Base Total Hotel Sales ...................................................................3
1.10 Base Year ................................................................................3
1.11 Business Day .............................................................................4
1.12 Capital Addition .........................................................................4
1.13 Capital Expenditure ......................................................................4
1.14 Claim ....................................................................................4
1.15 Code .....................................................................................4
1.16 Commencement Date ........................................................................4
1.17 Condemnation .............................................................................4
1.18 Condemnor ................................................................................4
1.19 Consolidated Financials ..................................................................4
1.20 Date of Taking ...........................................................................4
1.21 Default ..................................................................................5
1.22 Disbursement Rate ........................................................................5
1.23 Distribution .............................................................................5
1.24 Easement Agreement........................................................................5
1.25 Encumbrance...............................................................................5
1.26 Entity....................................................................................5
1.27 Environment ..............................................................................5
1.28 Environmental Obligation .................................................................5
1.29 Environmental Notice .....................................................................5
1.30 Event of Default .........................................................................5
1.31 Excess Total Hotel Sales..................................................................6
1.32 Extended Terms ...........................................................................6
1.33 FF&E Estimate.............................................................................6
1.34 FF&E Funded Amount........................................................................6
1.36 FF&E Reserve..............................................................................6
1.37 Financial Officer's Certificate ..........................................................6
1.38 Fiscal Year ..............................................................................6
1.39 Fixed Term ...............................................................................6
1.40 Fixtures .................................................................................6
1.41 GAAP .....................................................................................6
1.42 Government Agencies.......................................................................7
1.43 Ground Lease .............................................................................7
1.45 Hazardous Substances .....................................................................7
1.46 Hotel ....................................................................................8
1.47 Hotel Mortgage ...........................................................................8
1.48 Hotel Mortgagee ..........................................................................8
1.49 Immediate Family..........................................................................8
1.50 Impositions ..............................................................................8
1.51 Incidental Documents .....................................................................9
1.52 Indebtedness .............................................................................9
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1.53 Insurance Requirements ...................................................................9
1.54 Interest Rate.............................................................................9
1.55 Land ....................................................................................10
1.56 Landlord ................................................................................10
1.57 Landlord Liens...........................................................................10
1.58 Lease Year ..............................................................................10
1.59 Leased Improvements .....................................................................10
1.60 Leased Intangible Property ..............................................................10
1.61 Leased Personal Property ................................................................10
1.62 Leased Property .........................................................................10
1.63 Legal Requirements ......................................................................10
1.64 Lien ....................................................................................11
1.65 Management Agreement ....................................................................11
1.66 Manager .................................................................................11
1.67 Minimum Rent ............................................................................11
1.68 Net Worth ...............................................................................11
1.70 Officer's Certificate ...................................................................11
1.71 Overdue Rate ............................................................................11
1.72 Parent...................................................................................11
1.73 Permitted Encumbrances ..................................................................12
1.74 Permitted Liens .........................................................................12
1.75 Permitted Use ...........................................................................12
1.76 Person ..................................................................................12
1.77 Property.................................................................................12
1.78 Purchase Agreement.......................................................................12
1.79 Records .................................................................................12
1.80 Rent ....................................................................................12
1.81 Retained Funds...........................................................................12
1.83 Security Agreement.......................................................................12
1.84 ShoLodge.................................................................................13
1.85 State ...................................................................................13
1.86 Stock Pledge Agreement ..................................................................13
1.87 Subordinated Creditor ...................................................................13
1.88 Subordination Agreement .................................................................13
1.89 Subsidiary ..............................................................................13
1.90 Successor Landlord ......................................................................13
1.91 Tampa Renovation ........................................................................13
1.92 Tenant ..................................................................................13
1.93 Tenant's Personal Property ..............................................................13
1.94 Term ....................................................................................14
1.95 Total Hotel Sales........................................................................14
1.96 Uniform System of Accounts ..............................................................14
1.97 Unsuitable for Its Permitted Use ........................................................14
1.98 Work ....................................................................................15
ARTICLE 2: LEASED PROPERTY AND TERM.............................................................................15
2.1 Leased Property...........................................................................15
2.2 Condition of Leased Property..............................................................16
2.3 Fixed Term................................................................................17
2.4 Extended Term.............................................................................17
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ARTICLE 3: RENT.................................................................................................17
3.1 Rent......................................................................................17
3.1.1 Minimum Rent...................................................................18
3.1.2 Additional Rent................................................................18
3.1.3 Additional Charges.............................................................21
3.2 Late Payment of Rent, Etc.................................................................22
3.3 Net Lease.................................................................................23
3.4 No Termination, Abatement, Etc............................................................23
3.5 Retained Funds............................................................................24
ARTICLE 4 USE OF THE LEASED PROPERTY............................................................................25
4.1 Permitted Use.............................................................................25
4.1.1 Permitted Use..................................................................25
4.1.2 Necessary Approvals............................................................26
4.1.3 Lawful Use, Etc................................................................26
4.2 Compliance with Legal/Insurance Requirements,
Etc...................................................................................26
4.3 Environmental Matters.....................................................................27
4.3.1 Restriction on Use, Etc........................................................27
4.3.2 Indemnification of Landlord....................................................27
4.3.3 Survival.......................................................................28
ARTICLE 5: MAINTENANCE AND REPAIRS..............................................................................29
5.1 Maintenance and Repair....................................................................29
5.1.1 Tenant's General Obligations...................................................29
5.1.2 FF&E Reserve...................................................................29
5.1.3 Landlord's Obligations.........................................................31
5.1.4 Nonresponsibility of Landlord, Etc.............................................32
5.2 Tenant's Personal Property................................................................32
5.3 Yield Up..................................................................................33
5.4 Management Agreement......................................................................33
ARTICLE 6: IMPROVEMENTS, ETC....................................................................................34
6.1 Improvements to the Leased Property. ....................................................34
6.2 Salvage...................................................................................35
ARTICLE 7: LIENS................................................................................................35
7.1 Liens.....................................................................................35
7.2 Landlord's Lien...........................................................................35
ARTICLE 8: PERMITTED CONTESTS...................................................................................36
ARTICLE 9: INSURANCE AND INDEMNIFICATION........................................................................37
9.1 General Insurance Requirements............................................................37
9.2 Replacement Cost..........................................................................38
9.3 Waiver of Subrogation.....................................................................38
9.4 Form Satisfactory, Etc....................................................................39
9.5 Blanket Policy............................................................................39
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9.6 No Separate Insurance.....................................................................39
9.7 Indemnification of Landlord...............................................................40
ARTICLE 10: CASUALTY............................................................................................40
10.1 Insurance Proceeds.......................................................................40
10.2 Damage or Destruction....................................................................41
10.2.1 Damage or Destruction of Leased
Property..............................................................................41
10.2.2 Partial Damage or Destruction.................................................41
10.2.3 Insufficient Insurance Proceeds...............................................41
10.2.4 Disbursement of Proceeds......................................................42
10.3 Damage Near End of Term..................................................................43
10.4 Tenant's Property........................................................................43
10.5 Restoration of Tenant's Property.........................................................43
10.6 No Abatement of Rent.....................................................................44
10.7 Waiver...................................................................................44
ARTICLE 11: CONDEMNATION........................................................................................44
11.1 Total Condemnation, Etc..................................................................44
11.2 Partial Condemnation.....................................................................44
11.3 Abatement of Rent........................................................................46
11.4 Temporary Condemnation...................................................................46
11.5 Condemnation Near End of Term............................................................46
11.6 Allocation of Award......................................................................46
ARTICLE 12: DEFAULTS AND REMEDIES...............................................................................47
12.1 Events of Default........................................................................47
12.2 Remedies.................................................................................49
12.3 Tenant's Waiver..........................................................................51
12.4 Application of Funds.....................................................................51
12.5 Landlord's Right to Cure Tenant's Default................................................51
ARTICLE 13: HOLDING OVER........................................................................................52
ARTICLE 14: LANDLORD'S NOTICE OBLIGATIONS; LANDLORD DEFAULT.....................................................52
14.1 Landlord Notice Obligation...............................................................52
14.2 Landlord's Default.......................................................................52
14.3 Indemnification of Tenant................................................................53
ARTICLE 15: PURCHASE RIGHTS.....................................................................................54
ARTICLE 16: SUBLETTING AND ASSIGNMENT...........................................................................54
16.1 Subletting and Assignment................................................................54
16.2 Required Sublease Provisions.............................................................55
16.3 Permitted Sublease.......................................................................56
16.4 Sublease Limitation......................................................................57
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ARTICLE 17: ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS......................................................57
17.1 Estoppel Certificates....................................................................57
17.2 Financial Statements.....................................................................57
ARTICLE 18: LANDLORD'S RIGHT TO INSPECT.........................................................................58
ARTICLE 19: EASEMENTS...........................................................................................59
19.1 Grant of Easements.......................................................................59
19.2 Exercise of Rights by Tenant.............................................................59
19.3 Permitted Encumbrances...................................................................59
ARTICLE 20: HOTEL MORTGAGES.....................................................................................59
20.1 Landlord May Grant Liens.................................................................59
20.2 Subordination of Lease...................................................................60
20.3 Notice to Mortgagee and Superior Landlord................................................61
ARTICLE 21: ADDITIONAL COVENANTS OF TENANT......................................................................62
21.1 Prompt Payment of Indebtedness...........................................................62
21.2 Conduct of Business......................................................................62
21.3 Maintenance of Accounts and Records......................................................62
21.4 Notice of Litigation, Etc................................................................62
21.5 Indebtedness of Tenant...................................................................63
21.6 Financial Condition of Tenant............................................................64
21.7 Distributions, Payments to Affiliated Persons,
Etc..................................................................................64
21.8 Prohibited Transactions..................................................................64
21.9 Liens and Encumbrances...................................................................64
21.10 Merger; Sale of Assets; Etc.............................................................64
ARTICLE 22: MISCELLANEOUS.......................................................................................65
22.1 Limitation on Payment of Rent............................................................65
22.2 No Waiver................................................................................65
22.3 Remedies Cumulative......................................................................65
22.4 Severability.............................................................................66
22.5 Acceptance of Surrender..................................................................66
22.6 No Merger of Title.......................................................................66
22.7 Conveyance by Landlord...................................................................66
22.8 Quiet Enjoyment..........................................................................67
22.9 Memorandum of Lease......................................................................67
22.10 Notices.................................................................................67
22.11 Trade Area Restriction..................................................................68
22.12 Construction............................................................................69
22.13 Counterparts; Headings..................................................................69
22.14 Applicable Law, Etc.....................................................................69
22.15 Right to Make Agreement.................................................................70
22.16 Nonrecourse.............................................................................70
22.17 Attorneys' Fees.........................................................................70
22.18 Nonliability of Trustees................................................................70
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EXHIBITS
A-1 through A-14 - The Land
B - Restricted Trade Area
C - Allocation of Minimum Rent
D - Tampa Renovation Plans and Budget
LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into as of this 19th day of November,
1997, by and between HPT SUITE PROPERTIES TRUST, a Maryland real estate
investment trust, as landlord ("Landlord"), and SUITE TENANT, INC., a Tennessee
corporation, as tenant ("Tenant").
W I T N E S S E T H :
WHEREAS, Landlord owns fee simple title to the Leased Property (this
and other capitalized terms used and not otherwise defined herein having the
meanings ascribed to such terms in Article 1) described in Exhibit A-1 through
A-13 and holds the tenant's interest under the Ground Lease with respect to the
Property described in Exhibit A-14; and
WHEREAS, Landlord wishes to lease the Leased Property to Tenant and
Tenant wishes to lease the Leased Property from Landlord, all subject to and
upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, Landlord and Tenant hereby
agree as follows:
ARTICLE 1
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (i) the terms defined in this
Article shall have the meanings assigned to them in this Article and include the
plural as well as the singular, (ii) all accounting terms not otherwise defined
herein shall have the meanings assigned to them in accordance with GAAP, (iii)
all references in this Agreement to designated "Articles," "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of
this Agreement, and (iv) the words "herein," "hereof," "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
1.1 "Accounting Period" shall mean each four (4) week accounting period
of Tenant, except that an Accounting Period may, from time to time, include five
(5) weeks in order to conform Tenant's accounting system to Tenant's Fiscal
Year.
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1.2 "Additional Charges" shall have the meaning given such term in
Section 3.1.3.
1.3 "Additional Rent" shall have the meaning given such term in Section
3.1.2(a).
1.4 "Affiliated Person" shall mean, with respect to any Person, (a) in
the case of any such Person which is a partnership, any partner in such
partnership, (b) in the case of any such Person which is a limited liability
company, any member of such company, (c) any other Person which is a Parent, a
Subsidiary, or a Subsidiary of a Parent with respect to such Person or to one or
more of the Persons referred to in the preceding clauses (a) and (b), (d) any
other Person who is an officer, director, trustee or employee of, or partner in
or member of, such Person or any Person referred to in the preceding clauses
(a), (b) and (c), and (e) any other Person who is a member of the Immediate
Family of such Person or of any Person referred to in the preceding clauses (a)
through (d).
1.5 "Agreement" shall mean this Lease Agreement, including Exhibits A-1
through A-14, B and C hereto, as it and they may be amended from time to time as
herein provided.
1.6 "Applicable Laws" shall mean all applicable laws, statutes,
regulations, rules, ordinances, codes, licenses, permits and orders, from time
to time in existence, of all courts of competent jurisdiction and Government
Agencies, and all applicable judicial and administrative and regulatory decrees,
judgments and orders, including common law rulings and determinations, relating
to injury to, or the protection of, real or personal property or human health or
the Environment, including, without limitation, all valid and lawful
requirements of courts and other Government Agencies pertaining to reporting,
licensing, permitting, investigation, remediation and removal of underground
improvements (including, without limitation, treatment or storage tanks, or
water, gas or oil xxxxx), or emissions, discharges, releases or threatened
releases of Hazardous Substances, chemical substances, pesticides, petroleum or
petroleum products, pollutants, contaminants or hazardous or toxic substances,
materials or wastes whether solid, liquid or gaseous in nature, into the
Environment, or relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Substances,
underground improvements (including, without limitation, treatment or storage
tanks, or water, gas or oil xxxxx), or pollutants, contaminants or hazardous or
toxic substances, materials or wastes, whether solid, liquid or gaseous in
nature.
1.7 "Applicable Percentage" shall mean (a) three percent (3%) with
respect to the 1998 Fiscal Year; (b) four percent (4%)
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with respect to the 1999 Fiscal Year; and (c) five percent (5%) with respect to
each Fiscal Year thereafter during the Term.
1.8 "Award" shall mean all compensation, sums or other value awarded,
paid or received by virtue of a total or partial Condemnation of any of the
Leased Property (after deduction of all reasonable legal fees and other
reasonable costs and expenses, including, without limitation, expert witness
fees, incurred by Landlord, in connection with obtaining any such award).
1.9 "Base Total Hotel Sales" shall mean, with respect to each Property,
Total Hotel Sales for such Property for the Base Year in the event the Base Year
consists of 52 weeks, or, in the event the Base Year consists of 53 weeks, (x)
Total Hotel Sales for such Property for the Base Year, (y) divided by 53 and
then (z) multiplied by 52; provided, however, that in the event that, with
respect to any Lease Year, or portion thereof, for any reason (including,
without limitation, a casualty or Condemnation) there shall be a reduction of
five percent (5%) or more in the number of rooms at any Hotel or a change in the
services provided at any Hotel (including, without limitation, if applicable,
the closing of restaurants or the discontinuation of food or beverage services)
from the number of rooms or the services provided during the Base Year, in
determining Additional Rent payable with respect to such Lease Year, Base Total
Hotel Sales shall be reduced as follows: (a) in the event of the termination of
this Lease with respect to any Property pursuant to Article 10, 11 or 12, all
Total Hotel Sales attributable to such Property during the Base Year shall be
subtracted from Base Total Hotel Sales, appropriately prorated based on time
elapsed if such termination occurs on a date other than the first day of any
Fiscal Year; (b) in the event of a complete closing of a Hotel, all Total Hotel
Sales attributable to such Hotel during the Base Year shall be subtracted from
Base Total Hotel Sales throughout the period of such closing; (c) in the event
of a partial closing of a Hotel affecting five percent (5%) or more of the guest
rooms in such Hotel, Total Hotel Sales attributable to guest room occupancy or
guest room services at such Hotel during the Base Year shall be ratably
allocated among all guest rooms in service at such Hotel during the Base Year
and all such Total Hotel Sales attributable to rooms no longer in service shall
be subtracted from Base Total Hotel Sales throughout the period of such closing;
(d) in the event of a closing of a restaurant, all Total Hotel Sales
attributable to such restaurant during the Base Year shall be subtracted from
Base Total Hotel Sales throughout the period of such closing; and (e) in the
event of any other change in circumstances affecting any Hotel, Base Total Hotel
Sales shall be equitably adjusted in such manner as Landlord and Tenant shall
reasonably agree.
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1.10 "Base Year" shall mean, with respect to each Property other than
any Property located in Arizona, the 1998 Fiscal Year, and, with respect to each
Property located in Arizona, the thirteen Accounting Periods commencing July 13,
1998 with respect to the Properties located in Arizona.
1.11 "Business Day" shall mean any day other than Saturday, Sunday, or
any other day on which banking institutions in The Commonwealth of Massachusetts
or the State of New York are authorized by law or executive action to close.
1.12 "Capital Addition" shall mean any renovation, repair or
improvement to the Leased Property (or portion thereof), the cost of which
constitutes a Capital Expenditure.
1.13 "Capital Expenditure" shall mean any expenditure treated as
capital in nature in accordance with GAAP.
1.14 "Claim" shall have the meaning given such term in Article 8.
1.15 "Code" shall mean the Internal Revenue Code of 1986 and, to the
extent applicable, the Treasury Regulations promulgated thereunder, each as from
time to time amended.
1.16 "Commencement Date" shall mean the date of this Agreement.
1.17 "Condemnation" shall mean, with respect to any Property, (a) the
exercise of any governmental power with respect to such Property, whether by
legal proceedings or otherwise, by a Condemnor of its power of condemnation, (b)
a voluntary sale or transfer of such Property by Landlord to any Condemnor,
either under threat of condemnation or while legal proceedings for condemnation
are pending, or (c) a taking or voluntary conveyance of all or part of such
Property, or any interest therein, or right accruing thereto or use thereof, as
the result or in settlement of any condemnation or other eminent domain
proceeding affecting such Property, whether or not the same shall have actually
been commenced.
1.18 "Condemnor" shall mean any public or quasi-public Person, having
the power of Condemnation.
1.19 "Consolidated Financials" shall mean, for any Fiscal Year or other
accounting period of ShoLodge, annual audited and quarterly unaudited financial
statements of ShoLodge prepared on a consolidated basis, including ShoLodge's
consolidated balance sheet and the related statements of income and cash flows,
all in reasonable detail, and setting forth in comparative form the
corresponding figures for the corresponding period in the
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preceding Fiscal Year, and prepared in accordance with GAAP throughout the
periods reflected.
1.20 "Date of Taking" shall mean, with respect to any Property, the
date the Condemnor has the right to possession of such Property, or any portion
thereof, in connection with a Condemnation.
1.21 "Default" shall mean any event or condition which with the giving
of notice and/or lapse of time would ripen into an Event of Default.
1.22 "Disbursement Rate" shall mean an annual rate of interest, as of
the date of determination, equal to the greater of (i) the Interest Rate and
(ii) the per annum rate for fifteen (15) year U.S. Treasury Obligations as
published in The Wall Street Journal plus three hundred fifty (350) basis
points.
1.23 "Distribution" shall mean (a) any declaration or payment of any
dividend (except dividends payable in common stock of Tenant) on or in respect
of any shares of any class of capital stock of Tenant, (b) any purchase,
redemption, retirement or other acquisition of any shares of any class of
capital stock of a corporation, (c) any other distribution on or in respect of
any shares of any class of capital stock of a corporation or (d) any return of
capital to shareholders.
1.24 "Easement Agreement" shall mean any conditions, covenants and
restrictions, easements, declarations, licenses and other agreements which are
Permitted Encumbrances and such other agreements as may be granted in accordance
with Section 19.1.
1.25 "Encumbrance" shall have the meaning given such term in Section
20.1.
1.26 "Entity" shall mean any corporation, general or limited
partnership, limited liability company or partnership, stock company or
association, joint venture, association, company, trust, bank, trust company,
land trust, business trust, cooperative, any government or agency, authority or
political subdivision thereof or any other entity.
1.27 "Environment" shall mean soil, surface waters, ground waters,
land, stream, sediments, surface or subsurface strata and ambient air.
1.28 "Environmental Obligation" shall have the meaning given such term
in Section 4.3.1.
1.29 "Environmental Notice" shall have the meaning given such term in
Section 4.3.1.
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1.30 "Event of Default" shall have the meaning given such term in
Section 12.1.
1.31 "Excess Total Hotel Sales" shall mean, with respect to any
Property, with respect to any Lease Year, or portion thereof, the amount of
Total Hotel Sales for such Property for such Lease Year, or portion thereof, in
excess of Base Total Hotel Sales for such Property for the equivalent period;
provided, however, that if any Lease Year consists of 53 weeks, Excess Total
Hotel Sales shall equal the amount of (i) (x) Total Hotel Sales for the
applicable Property for the applicable Lease Year (y) divided by 53 and then (z)
multiplied by 52 in excess of (ii) Base Total Hotel Sales for such Property.
1.32 "Extended Terms" shall have the meaning given such term in Section
2.4.
1.33 "FF&E Estimate" shall have the meaning given such term in Section
5.1.2(c).
1.34 "FF&E Funded Amount" shall mean an amount equal to Five Hundred
Thousand Dollars less any amounts paid prior to the date hereof with respect to
the Tampa Renovation in accordance with Exhibit D and approved by Landlord.
1.35 "FF&E Pledge" shall mean the Assignment and Security Agreement,
dated as of the date hereof, made by Tenant for the benefit of Landlord.
1.36 "FF&E Reserve" shall have the meaning given such term in Section
5.1.2(a).
1.37 "Financial Officer's Certificate" shall mean, as to any Person, a
certificate of the chief executive officer, chief financial officer or chief
accounting officer (or such officers' authorized designee) of such Person, duly
authorized, accompanying the financial statements required to be delivered by
such Person pursuant to Section 17.2, in which such officer shall certify (a)
that such statements have been properly prepared in accordance with GAAP and are
true, correct and complete in all material respects and fairly present the
consolidated financial condition of such Person at and as of the dates thereof
and the results of its and their operations for the periods covered thereby, and
(b), in the event that the certifying party is an officer of Tenant and the
certificate is being given in such capacity, certify that no Event of Default
has occurred and is continuing hereunder.
1.38 "Fiscal Year" shall mean the 52 or 53 week period ending on the
last Sunday of each calendar year.
1.39 "Fixed Term" shall have the meaning given such term in Section
2.3.
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1.40 "Fixtures" shall have the meaning given such term in Section
2.1(d).
1.41 "GAAP" shall mean generally accepted accounting principles
consistently applied.
1.42 "Government Agencies" shall mean any court, agency, authority,
board (including, without limitation, environmental protection, planning and
zoning), bureau, commission, department, office or instrumentality of any nature
whatsoever of any governmental or quasi-governmental unit of the United States
or any State or any county or any political subdivision of any of the foregoing,
whether now or hereafter in existence, having jurisdiction over Tenant or the
Leased Property or any portion thereof or any Hotel operated thereon.
1.43 "Ground Lease" shall mean the Ground Lease, dated January 24,
1996, between Christian Chapel CME Church, as landlord, and Southeast Texas
Inns, Inc., as tenant, as amended
from time to time.
1.44 "Guaranty" shall mean the Limited Guaranty Agreement, dated the
date hereof, made by ShoLodge for the benefit of Landlord and Hospitality
Properties Trust.
1.45 "Hazardous Substances" shall mean any substance:
(a) the presence of which requires or may hereafter require
notification, investigation or remediation under any federal, state or
local statute, regulation, rule, ordinance, order, action or policy; or
(b) which is or becomes defined as a "hazardous waste",
"hazardous material" or "hazardous substance" or "pollutant" or
"contaminant" under any present or future federal, state or local
statute, regulation, rule or ordinance or amendments thereto including,
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. et seq.) and the Resource
Conservation and Recovery Act (42 U.S.C. section 6901 et seq.) and the
regulations promulgated thereunder; or
(c) which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous
and is or becomes regulated by any governmental authority, agency,
department, commission, board, agency or instrumentality of the United
States, any state of the United States, or any political subdivision
thereof; or
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(d) the presence of which on the Leased Property, or any
portion thereof, causes or materially threatens to cause an unlawful
nuisance upon the Leased Property, or any portion thereof, or to
adjacent properties or poses or materially threatens to pose a hazard
to the Leased Property, or any portion thereof, or to the health or
safety of persons on or about the Leased Property, or any portion
thereof; or
(e) without limitation, which contains gasoline, diesel fuel
or other petroleum hydrocarbons or volatile organic compounds; or
(f) without limitation, which contains polychlorinated
biphenyls (PCBs) or asbestos or urea formaldehyde foam insulation; or
(g) without limitation, which contains or emits radioactive
particles, waves or material; or
(h) without limitation, constitutes materials which are now or
may hereafter be subject to regulation pursuant to the Material Waste
Tracking Act of 1988.
1.46 "Hotel" shall mean, with respect to any Property described on
Exhibit A-1 through A-14, the all suites hotel being operated on such Property.
1.47 "Hotel Mortgage" shall mean any Encumbrance placed upon the Leased
Property in accordance with Article 20.
1.48 "Hotel Mortgagee" shall mean the holder of any Hotel Mortgage.
1.49 "Immediate Family" shall mean, with respect to any individual,
such individual's spouse, parents, brothers, sisters, children (natural or
adopted), stepchildren, grandchildren, grandparents, parents-in-law,
brothers-in-law, sisters-in-law, nephews and nieces.
1.50 "Impositions" shall mean collectively, all taxes (including,
without limitation, all taxes imposed under the laws of any State, as such laws
may be amended from time to time, and all ad valorem, sales and use, or similar
taxes as the same relate to or are imposed upon Landlord, Tenant or the business
conducted upon the Leased Property), assessments (including, without limitation,
all assessments for public improvements or benefit, whether or not commenced or
completed prior to the date hereof), water, sewer or other rents and charges,
excises, tax levies, fees (including, without limitation, license, permit,
inspection, authorization and similar fees), and all other
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governmental charges, in each case whether general or special, ordinary or
extraordinary, or foreseen or unforeseen, of every character in respect of the
Leased Property or the business conducted thereon by Tenant (including all
interest and penalties thereon due to any failure in payment by Tenant), which
at any time prior to, during or in respect of the Term hereof may be assessed or
imposed on or in respect of or be a lien upon (a) Landlord's interest in the
Leased Property, (b) the Leased Property or any part thereof or any rent
therefrom or any estate, right, title or interest therein, or (c) any occupancy,
operation, use or possession of, or sales from, or activity conducted on, or in
connection with the Leased Property or the leasing or use of the Leased Property
or any part thereof by Tenant; provided, however, that nothing contained herein
shall be construed to require Tenant to pay and the term "Impositions" shall not
include (i) any tax based on net income imposed on Landlord, (ii) any net
revenue tax of Landlord, (iii) any transfer fee (but excluding any mortgage or
similar tax payable in connection with a Hotel Mortgage) or other tax imposed
with respect to the sale, exchange or other disposition by Landlord of the
Leased Property or the proceeds thereof, (iv) any single business, gross
receipts tax, transaction privilege, rent or similar taxes as the same relate to
or are imposed upon Landlord, (v) any interest or penalties imposed on Landlord
as a result of the failure of Landlord to file any return or report timely and
in the form prescribed by law or to pay any tax or imposition, except to the
extent such failure is a result of a breach by Tenant of its obligations
pursuant to Section 3.1.3, (vi) any impositions imposed on Landlord that are a
result of Landlord not being considered a "United States person" as defined in
Section 7701(a)(30) of the Code, (vii) any impositions that are enacted or
adopted by their express terms as a substitute for any tax that would not have
been payable by Tenant pursuant to the terms of this Agreement or (viii) any
impositions imposed as a result of a breach of covenant or representation by
Landlord in any agreement governing Landlord's conduct or operation or as a
result of the negligence or willful misconduct of Landlord.
1.51 "Incidental Documents" shall mean the Guaranty, the Security
Agreement, the Stock Pledge Agreement and the FF&E Pledge.
1.52 "Indebtedness" shall mean all obligations, contingent or
otherwise, which in accordance with GAAP should be reflected on the obligor's
balance sheet as liabilities.
1.53 "Insurance Requirements" shall mean all terms of any insurance
policy required by this Agreement and all requirements of the issuer of any such
policy and all orders, rules and regulations and any other requirements of the
National Board of
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Fire Underwriters (or any other body exercising similar functions) binding upon
Landlord, Tenant or the Leased Property.
1.54 "Interest Rate" shall mean ten percent (10%) per annum.
1.55 "Land" shall have the meaning given such term in Section 2.1(a).
1.56 "Landlord" shall have the meaning given such term in the preambles
to this Agreement and shall also include its permitted successors and assigns.
1.57 "Landlord Liens" shall mean liens on or against the Leased
Property or any payment of Rent (a) which result from any act of, or any claim
against, Landlord or any owner of a direct or indirect interest in the Leased
Property, or which result from any violation by Landlord of any terms of this
Agreement or the Purchase Agreement, or (b) which result from liens in favor of
any taxing authority by reason of any tax owed by Landlord or any fee owner of a
direct or indirect interest in the Leased Property; provided, however, that
"Landlord Lien" shall not include any lien resulting from any tax for which
Tenant is obligated to pay or indemnify Landlord against until such time as
Tenant shall have already paid to or on behalf of Landlord the tax or the
required indemnity with respect to the same.
1.58 "Lease Year" shall mean any Fiscal Year or portion thereof,
commencing with the 1998 Fiscal Year, during the Term.
1.59 "Leased Improvements" shall have the meaning given such term in
Section 2.1(b).
1.60 "Leased Intangible Property" shall mean all hotel licensing
agreements and other service contracts, equipment leases, booking agreements and
other arrangements or agreements affecting the ownership, repair, maintenance,
management, leasing or operation of the Leased Property to which Landlord is a
party; all books, records and files relating to the leasing, maintenance,
management or operation of the Leased Property belonging to Landlord; all
transferable or assignable permits, certificates of occupancy, operating
permits, sign permits, development rights and approvals, certificates, licenses,
warranties and guarantees, rights to deposits, trade names, service marks,
telephone exchange numbers identified with the Leased Property, and all other
transferable intangible property, miscellaneous rights, benefits and privileges
of any kind or character belonging to Landlord with respect to the Leased
Property other than liquor licenses.
1.61 "Leased Personal Property" shall have the meaning given such term
in Section 2.1(e).
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1.62 "Leased Property" shall have the meaning given such term in
Section 2.1.
1.63 "Legal Requirements" shall mean all federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting the Leased Property or
the maintenance, construction, alteration or operation thereof, whether now or
hereafter enacted or in existence, including, without limitation, (a) all
permits, licenses, authorizations, certificates and regulations necessary to
operate any Property for its Permitted Use, and (b) all covenants, agreements,
restrictions and encumbrances contained in any instruments at any time in force
affecting any Property, including those which may (i) require material repairs,
modifications or alterations in or to any Property or (ii) in any way materially
and adversely affect the use and enjoyment thereof, but excluding any
requirements arising as a result of Landlord's status as a real estate
investment trust.
1.64 "Lien" shall mean any mortgage, security interest, pledge,
collateral assignment, or other encumbrance, lien or charge of any kind, or any
transfer of property or assets for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors.
1.65 "Management Agreement" shall mean any management agreement entered
into by Tenant with respect to all or any portion of the Leased Property,
together with all amendments, modifications and supplements thereto.
1.66 "Manager" shall mean any manager under a Management Agreement.
1.67 "Minimum Rent" shall mean an amount equal to One
Million Seventy-Six Thousand Nine Hundred Twenty-Three Dollars
($1,076,923) per Accounting Period.
1.68 "Net Worth" shall mean the excess of total assets over total
liabilities, total assets and total liabilities each to be determined in
accordance with GAAP.
1.69 "Notice" shall mean a notice given in accordance with Section
22.10.
1.70 "Officer's Certificate" shall mean a certificate signed by an
officer or other duly authorized individual of the certifying Entity duly
authorized by the board of directors or other governing body of the certifying
Entity.
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1.71 "Overdue Rate" shall mean, on any date, a per annum rate of
interest equal to the lesser of thirteen percent (13%) and the maximum rate then
permitted under applicable law.
1.72 "Parent" shall mean, with respect to any Person, any Person which
owns directly, or indirectly through one or more Subsidiaries or Affiliated
Persons, fifty percent (50%) or more of the voting or beneficial interest in, or
otherwise has the right or power (whether by contract, through ownership of
securities or otherwise) to control, such Person.
1.73 "Permitted Encumbrances" shall mean, with respect to any Property,
all rights, restrictions, and easements of record set forth on Schedule B to the
applicable owner's or leasehold title insurance policy issued to Landlord in
connection with the transactions contemplated by the Purchase Agreement with
respect to such Property, plus any other encumbrances as may be "Permitted
Encumbrances" under the Purchase Agreement or as may have been consented to in
writing by Landlord and Tenant from time to time.
1.74 "Permitted Liens" shall mean any Liens granted in accordance with
Section 21.9(a).
1.75 "Permitted Use" shall mean, with respect to any Property, any use
of such Property permitted pursuant to Section 4.1.1.
1.76 "Person" shall mean any individual or Entity, and the heirs,
executors, administrators, legal representatives, successors and assigns of such
Person where the context so admits.
1.77 "Property" shall have the meaning given such term in Section 2.1.
1.78 "Purchase Agreement" shall mean the Purchase and Sale Agreement,
dated as of October __, 1997, by and between Hospitality Properties Trust and
ShoLodge and certain of its Subsidiaries, as it may be amended, restated,
supplemented or otherwise modified from time to time.
1.79 "Records" shall have the meaning given such term in Section 7.2.
1.80 "Rent" shall mean, collectively, the Minimum Rent,
Additional Rent and Additional Charges.
1.81 "Retained Funds" shall mean a cash amount equal to Fourteen
Million Dollars ($14,000,000).
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1.82 "SEC" shall mean the Securities and Exchange Commission.
1.83 "Security Agreement" shall mean the Security Agreement, dated as
of the date hereof, made by Tenant for the benefit of Landlord, as it may be
amended, restated, supplemented or otherwise modified from time to time.
1.84 "ShoLodge" shall mean ShoLodge, Inc., a Tennessee corporation, its
successors and assigns.
1.85 "State" shall mean, with respect to any Property, the state,
commonwealth or district in which the such Property is located.
1.86 "Stock Pledge Agreement" shall mean the Stock Pledge Agreement,
dated as of the date hereof, made by ShoLodge to Landlord with respect to the
stock of Tenant, as it may be amended, restated, supplemented or otherwise
modified from time to time.
1.87 "Subordinated Creditor" shall mean any creditor of Tenant which is
a party to a Subordination Agreement in favor of Landlord.
1.88 "Subordination Agreement" shall mean any agreement (and any
amendments thereto) executed by a Subordinated Creditor pursuant to which the
payment and performance of Tenant's obligations to such Subordinated Creditor
are subordinated to the payment and performance of Tenant's obligations to
Landlord under this Agreement.
1.89 "Subsidiary" shall mean, with respect to any Person, any Entity
(a) in which such Person owns directly, or indirectly through one or more
Subsidiaries, twenty percent (20%) or more of the voting or beneficial interest
or (b) which such Person otherwise has the right or power to control (whether by
contract, through ownership of securities or otherwise).
1.90 "Successor Landlord" shall have the meaning given such term in
Section 20.2.
1.91 "Tampa Renovation" shall mean the renovation of the Hotel located
in Tampa, Florida in accordance with the plans and specifications and budget
therefor attached hereto as Exhibit D.
1.92 "Tenant" shall have the meaning given such term in the preambles
to this Agreement and shall also include its permitted successors and assigns.
1.93 "Tenant's Personal Property" shall mean all motor vehicles and
consumable inventory and supplies, furniture,
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furnishings, movable walls and partitions, equipment and machinery and all other
tangible personal property of Tenant, if any, acquired by Tenant on and after
the date hereof and located at the Leased Property or used in Tenant's business
at the Leased Property and all modifications, replacements, alterations and
additions to such personal property installed at the expense of Tenant, other
than any items included within the definition of Fixtures or Leased Personal
Property.
1.94 "Term" shall mean, collectively, the Fixed Term and the Extended
Terms, to the extent properly exercised pursuant to the provisions of Section
2.4, unless sooner terminated pursuant to the provisions of this Agreement.
1.95 "Total Hotel Sales" shall mean, with respect to each Property, for
each Fiscal Year during the Term, all revenues and receipts of every kind
derived by Tenant from operating such Property and parts thereof, including, but
not limited to: income (from both cash and credit transactions), after
deductions for bad debts, and discounts for prompt or cash payments and refunds,
from rental of rooms, stores, offices, meeting, exhibit or sales space of every
kind; license, lease and concession fees and rentals (not including gross
receipts of licensees, lessees and concessionaires); income from vending
machines; health club membership fees; food and beverage sales; wholesale and
retail sales of merchandise (other than proceeds from the sale of furnishings,
fixture and equipment no longer necessary to the operation of any Hotel, which
shall be deposited in the FF&E Reserve); service charges, to the extent not
distributed to the employees at any Hotel as gratuities; and proceeds, if any,
from business interruption or other loss of income insurance; provided, however,
that Total Hotel Sales shall not include the following: gratuities to or
collected on behalf of Hotel employees; federal, state or municipal excise,
sales, use, occupancy or similar taxes collected directly from patrons or guests
or included as part of the sales price of any goods or services; insurance
proceeds (other than proceeds from business interruption or other loss of income
insurance); Award proceeds (other than for a temporary Condemnation); any
proceeds from any sale of such Property or from the refinancing of any debt
encumbering such Property; proceeds from the disposition of furnishings, fixture
and equipment no longer necessary for the operation of any Hotel; interest which
accrues on amounts deposited in the FF&E Reserve; and any security deposits and
other advance deposits, until and unless the same are forfeited to Tenant or
applied for the purpose for which they were collected; and interest income from
any bank account or investment of Tenant.
1.96 "Uniform System of Accounts" shall mean A Uniform System of
Accounts for Hotels, Eighth Revised Edition, 1986, as
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published by the Hotel Association of New York City, as the same may be further
revised from time to time.
1.97 "Unsuitable for Its Permitted Use" shall mean, with respect to
such Hotel, a state or condition of such Hotel such that (a) following any
damage or destruction involving a Hotel, such Hotel cannot be operated in the
good faith judgment of Tenant on a commercially practicable basis for its
Permitted Use and it cannot reasonably be expected to be restored to
substantially the same condition as existed immediately before such damage or
destruction, and as otherwise required by Section 10.2.4, within twelve (12)
months following such damage or destruction or such shorter period of time as to
which business interruption insurance is available to cover Rent and other costs
related to the applicable Property following such damage or destruction, or (b)
as the result of a partial taking by Condemnation, such Hotel cannot be
operated, in the good faith judgment of Tenant, on a commercially practicable
basis for its Permitted Use.
1.98 "Work" shall have the meaning given such term in Section 10.2.4.
ARTICLE 2
LEASED PROPERTY AND TERM
2.1 Leased Property. Upon and subject to the terms and conditions
hereinafter set forth, Landlord leases to Tenant and Tenant leases from Landlord
all of Landlord's right, title and interest in and to all of the following (each
of items (a) through (g) below which, as of the Commencement Date, relates to
any single Hotel, a "Property" and, collectively, the "Leased Property"):
(a) those certain tracts, pieces and parcels of land, as more
particularly described in Exhibit A-1 through A-14, attached hereto and
made a part hereof (the "Land");
(b) all buildings, structures and other improvements of every
kind including, but not limited to, alleyways and connecting tunnels,
sidewalks, utility pipes, conduits and lines (on-site and off-site),
parking areas and roadways appurtenant to such buildings and structures
presently situated upon the Land (collectively, the "Leased
Improvements");
(c) all easements, rights and appurtenances relating to the
Land and the Leased Improvements;
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(d) all equipment, machinery, fixtures, and other items of
property, now or hereafter permanently affixed to or incorporated into
the Leased Improvements, including, without limitation, all furnaces,
boilers, heaters, electrical equipment, heating, plumbing, lighting,
ventilating, refrigerating, incineration, air and water pollution
control, waste disposal, air-cooling and air-conditioning systems and
apparatus, sprinkler systems and fire and theft protection equipment,
all of which, to the maximum extent permitted by law, are hereby deemed
by the parties hereto to constitute real estate, together with all
replacements, modifications, alterations and additions thereto, but
specifically excluding all items included within the category of
Tenant's Personal Property (collectively, the "Fixtures");
(e) all machinery, equipment, furniture, furnishings, moveable
walls or partitions, computers or trade fixtures or other personal
property of any kind or description used or useful in Tenant's business
on or in the Leased Improvements, and located on or in the Leased
Improvements, and all modifications, replacements, alterations and
additions to such personal property, except items, if any, included
within the category of Fixtures, but specifically excluding all items
included within the category of Tenant's Personal Property
(collectively, the "Leased Personal Property");
(f) all of the Leased Intangible Property; and
(g) any and all leases of space in the Leased Improvements.
2.2 Condition of Leased Property. Tenant acknowledges receipt and
delivery of possession of the Leased Property and Tenant accepts the Leased
Property in its "as is" condition, subject to the rights of parties in
possession, the existing state of title, including all covenants, conditions,
restrictions, reservations, mineral leases, easements and other matters of
record or that are visible or apparent on the Leased Property, all applicable
Legal Requirements, the lien of any financing instruments, mortgages and deeds
of trust existing prior to the Commencement Date or permitted by the terms of
this Agreement, and such other matters which would be disclosed by an inspection
of the Leased Property and the record title thereto or by an accurate survey
thereof. TENANT REPRESENTS THAT IT HAS INSPECTED THE LEASED PROPERTY AND ALL OF
THE FOREGOING AND HAS FOUND THE CONDITION THEREOF SATISFACTORY AND IS NOT
RELYING ON ANY REPRESENTATION OR WARRANTY OF LANDLORD OR LANDLORD'S AGENTS OR
EMPLOYEES WITH RESPECT THERETO AND TENANT WAIVES ANY CLAIM OR ACTION AGAINST
LANDLORD IN RESPECT OF THE CONDITION OF THE LEASED PROPERTY. LANDLORD MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS
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OR IMPLIED, IN RESPECT OF THE LEASED PROPERTY OR ANY PART THEREOF, EITHER AS TO
ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR
OTHERWISE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR
PATENT, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY TENANT. To the
maximum extent permitted by law, however, Landlord hereby assigns to Tenant all
of Landlord's rights to proceed against any predecessor in title for breaches of
warranties or representations or for latent defects in the Leased Property.
Landlord shall fully cooperate with Tenant in the prosecution of any such
claims, in Landlord's or Tenant's name, all at Tenant's sole cost and expense.
Tenant shall indemnify, defend, and hold harmless Landlord from and against any
loss, cost, damage or liability (including reasonable attorneys' fees) incurred
by Landlord in connection with such cooperation.
2.3 Fixed Term. The initial term of this Agreement (the "Fixed Term")
shall commence on the Commencement Date and shall expire January 31, 2008.
2.4 Extended Term. Provided that no Event of Default shall have
occurred and be continuing, the Term shall be automatically extended for five
(5) consecutive renewal terms of ten (10) years each (collectively, the
"Extended Terms"), unless Tenant shall give Landlord Notice, not later than
eighteen (18) months prior to the scheduled expiration of the then current Term
of this Agreement (Fixed or Extended, as the case may be), that Tenant elects
not so to extend the term of this Agreement.
Each Extended Term shall commence on the day succeeding the expiration
of the Fixed Term or the preceding Extended Term, as the case may be. All of the
terms, covenants and provisions of this Agreement shall apply to each such
Extended Term, except that Tenant shall have no right to extend the Term beyond
the expiration of the Extended Terms. If Tenant shall give Notice that it elects
not to extend the Term in accordance with this Section 2.4, this Agreement shall
automatically terminate at the end of the Term then in effect and Tenant shall
have no further option to extend the Term of this Agreement. Otherwise, the
extension of this Agreement shall be automatically effected without the
execution of any additional documents; it being understood and agreed, however,
that Tenant and Landlord shall execute such documents and agreements as either
party shall reasonably require to evidence the same.
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ARTICLE 3
RENT
3.1 Rent. Tenant shall pay, in lawful money of the United States of
America which shall be legal tender for the payment of public and private debts,
without offset, abatement, demand or deduction (unless otherwise expressly
provided in this Agreement), Minimum Rent and Additional Rent to Landlord and
Additional Charges to the party to whom such Additional Charges are payable,
during the Term. All payments to Landlord shall be made by wire transfer of
immediately available federal funds or by other means acceptable to Landlord in
its sole discretion. Rent for any partial Accounting Period shall be prorated on
a per diem basis.
3.1.1 Minimum Rent.
(a) Payments. Minimum Rent shall be paid in advance on the
first Business Day of each Accounting Period; provided, however, that
the first payment of Minimum Rent shall be payable on the Commencement
Date (and, if applicable, such payment shall be prorated as provided in
the last sentence of the first paragraph of Section 3.1).
(b) Adjustments of Minimum Rent Following Disbursements Under
Sections 5.1.3(b), 10.2.3 and 11.2. Effective on the date of each
disbursement to pay for the cost of any repairs, maintenance,
renovations or replacements pursuant to Sections 5.1.3(b), 10.2.3 or
11.2, the annual Minimum Rent shall be increased by a per annum amount
equal to the Disbursement Rate times the amount so disbursed. If any
such disbursement is made during any month on a day other than the
first Business Day of an Accounting Period, Tenant shall pay to
Landlord on the first Business Day of the immediately following
Accounting Period (in addition to the amount of Minimum Rent payable
with respect to such Accounting Period, as adjusted pursuant to this
paragraph (b)) the amount by which Minimum Rent for the preceding
Accounting Period, as adjusted for such disbursement on a per diem
basis, exceeded the amount of Minimum Rent paid by Tenant for such
preceding Accounting Period.
(c) Adjustments of Minimum Rent Following Partial Lease
Termination. If this Lease shall terminate with respect to any Property
but less than all of the Leased Property, Minimum Rent shall be reduced
by the affected Property's allocable share of Minimum Rent as set forth
in Exhibit C.
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3.1.2 Additional Rent.
(a) Amount. Tenant shall pay additional rent ("Additional
Rent") with respect to each Property with respect to each Lease Year
beginning with the 1999 Lease Year, in an amount, not less than zero,
equal to eight percent (8%) of Excess Total Hotel Sales for such
Property.
(b) Accounting Period Installments. Installments of Additional
Rent for each Lease Year or portion thereof shall be calculated and
paid with respect to each Accounting Period in arrears on the first
Business Day of each Accounting Period, based on Total Hotel Sales for
the preceding year, together with an Officer's Certificate setting
forth the calculation of Additional Rent due and payable for such
Accounting Period.
(c) Reconciliation of Additional Rent. On or before April 30,
1999, Tenant shall deliver to Landlord an Officer's Certificate setting
forth Total Hotel Sales for each Property for the Base Year (other than
with respect to the Hotels located in Tempe and Tucson), together with
an audit thereof by Deloitte & Touche LLP or another firm of
independent certified public accountants proposed by Tenant and
approved by Landlord (which approval shall not be unreasonably
withheld, delayed or conditioned). On or before November 15, 1999,
Tenant shall deliver to Landlord an Officer's Certificate setting forth
Total Hotel Sales for the Base Year for each of the Tempe and Tucson
Properties, together with an audit thereof by Deloitte & Touche LLP or
another firm of independent certified public accountants proposed by
Tenant and approved by Landlord (which approval shall not be
unreasonably withheld, delayed or conditioned). On or before April 30,
of each year, commencing April 30, 2000, Tenant shall deliver to
Landlord an Officer's Certificate setting forth the Total Hotel Sales
for each Property for the preceding Lease Year and the Additional Rent
payable with respect to such Property for such Lease Year, together
with an audit thereof, by Deloitte & Touche LLP or another firm of
independent certified public accountants proposed by Tenant and
approved by Landlord (which approval shall not be unreasonably
withheld, delayed or conditioned).
If the annual Additional Rent for such preceding Lease Year as shown in
the Officer's Certificate exceeds the amount previously paid with respect
thereto by Tenant, Tenant shall pay such excess to Landlord at such time as the
Officer's Certificate is delivered, together with interest at the Interest Rate,
which interest shall accrue from the close of such preceding Lease Year until
the date that such certificate is required to be delivered and, thereafter, such
interest shall accrue at the Overdue Rate,
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until the amount of such difference shall be paid or otherwise discharged. If
the annual Additional Rent for such preceding Lease Year as shown in the
Officer's Certificate is less than the amount previously paid with respect
thereto by Tenant, provided that no Event of Default shall have occurred and be
continuing, Landlord shall grant Tenant a credit against the Rent next coming
due in the amount of such difference, together with interest at the Interest
Rate, which interest shall accrue from the date of payment by Tenant until the
date such credit is applied or paid, as the case may be. If such credit cannot
be made because the Term has expired prior to application in full thereof,
provided no Event of Default has occurred and is continuing, Landlord shall pay
the unapplied balance of such credit to Tenant, together with interest at the
Interest Rate, which interest shall accrue from the date of payment by Tenant
until the date of payment by Landlord.
(d) Confirmation of Additional Rent. Tenant shall utilize, or
cause to be utilized, an accounting system for the Leased Property in
accordance with its usual and customary practices and in accordance
with GAAP, which will accurately record all Total Hotel Sales and
Tenant shall retain, for at least three (3) years after the expiration
of each Lease Year, reasonably adequate records conforming to such
accounting system showing all Total Hotel Sales for such Lease Year.
Landlord, at its own expense, except as provided hereinbelow, shall
have the right, exercisable by Notice to Tenant within one (1) year
after receipt of the applicable Officer's Certificate, by its
accountants or representatives, to audit the information set forth in
the Officer's Certificate referred to in subparagraph (c) above and, in
connection with such audits, to examine Tenant's books and records with
respect thereto (including supporting data and sales and excise tax
returns). If any such audit discloses a deficiency in the payment of
Additional Rent and, either Tenant agrees with the result of such audit
or the matter is otherwise compromised with Landlord, Tenant shall
forthwith pay to Landlord the amount of the deficiency, as finally
agreed or determined, together with interest at the Interest Rate, from
the date such payment should have been made to the date of payment
thereof. If such deficiency, as agreed upon or compromised as
aforesaid, is more than five percent (5%) of Additional Rent paid by
Tenant for such Lease Year and, as a result, Landlord did not receive
at least ninety-five percent (95%) of the Additional Rent payable with
respect to such Lease Year, Tenant shall pay the reasonable cost of
such audit and examination. If any such audit discloses that Tenant
paid more Additional Rent for any Lease Year than was due hereunder,
and either Landlord agrees with the result of such audit or the matter
is otherwise determined, provided no Event of Default has occurred and
is continuing, Landlord
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shall grant Tenant a credit equal to the amount of such overpayment
against the Rent next coming due in the amount of such difference, as
finally agreed or determined, together with interest at the Interest
Rate, which interest shall accrue from the time of payment by Tenant
until the date such credit is applied or paid, as the case may be. If
such a credit cannot be made because the Term has expired before the
credit can be applied in full, provided no Event of Default has
occurred and is continuing, Landlord shall pay the unapplied balance of
such credit to Tenant, together with interest at the Interest Rate,
which interest shall accrue from the date of payment by Tenant until
the date of payment from Landlord.
Any proprietary information obtained by Landlord with respect to Tenant
pursuant to the provisions of this Agreement shall be treated as confidential,
except that such information may be used, subject to appropriate confidentiality
safeguards, in any litigation between the parties and except further that
Landlord may disclose such information to its prospective lenders, provided that
Landlord shall direct and obtain the agreement of such lenders to maintain such
information as confidential. The obligations of Tenant and Landlord contained in
this Section 3.1.2 shall survive the expiration or earlier termination of this
Agreement.
3.1.3 Additional Charges. In addition to the Minimum Rent and
Additional Rent payable hereunder, Tenant shall pay to the appropriate parties
and discharge as and when due and payable the following (collectively,
"Additional Charges"):
(a) Impositions. Subject to Article 8 relating to permitted
contests, Tenant shall pay, or cause to be paid, all Impositions before
any fine, penalty, interest or cost (other than any opportunity cost as
a result of a failure to take advantage of any discount for early
payment) may be added for non-payment, such payments to be made
directly to the taxing authorities where feasible, and shall promptly,
upon request, furnish to Landlord copies of official receipts or other
reasonably satisfactory proof evidencing such payments. If any such
Imposition may, at the option of the taxpayer, lawfully be paid in
installments (whether or not interest shall accrue on the unpaid
balance of such Imposition), Tenant may exercise the option to pay the
same (and any accrued interest on the unpaid balance of such
Imposition) in installments and, in such event, shall pay such
installments during the Term as the same become due and before any
fine, penalty, premium, further interest or cost may be added thereto.
Landlord, at its expense, shall, to the extent required or permitted by
Applicable Law, prepare and file all tax returns and pay all taxes due
in respect of Landlord's net income, gross receipts, sales and use,
single
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business, transaction privilege, rent, ad valorem, franchise taxes and
taxes on its capital stock, and Tenant, at its expense, shall, to the
extent required or permitted by Applicable Laws and regulations,
prepare and file all other tax returns and reports in respect of any
Imposition as may be required by Government Agencies. Provided no Event
of Default shall have occurred and be continuing, if any refund shall
be due from any taxing authority in respect of any Imposition paid by
Tenant, the same shall be paid over to or retained by Tenant. Landlord
and Tenant shall, upon request of the other, provide such data as is
maintained by the party to whom the request is made with respect to the
Leased Property as may be necessary to prepare any required returns and
reports. In the event Government Agencies classify any property covered
by this Agreement as personal property, Tenant shall file all personal
property tax returns in such jurisdictions where it may legally so
file. Each party shall, to the extent it possesses the same, provide
the other, upon request, with cost and depreciation records necessary
for filing returns for any property so classified as personal property.
Where Landlord is legally required to file personal property tax
returns for property covered by this Agreement, Landlord shall provide
Tenant with copies of assessment notices in sufficient time for Tenant
to file a protest. All Impositions assessed against such personal
property shall be (irrespective of whether Landlord or Tenant shall
file the relevant return) paid by Tenant not later than the last date
on which the same may be made without interest or penalty, subject to
the provisions of Article 8.
Landlord shall give prompt Notice to Tenant of all Impositions
payable by Tenant hereunder of which Landlord at any time has
knowledge; provided, however, that Landlord's failure to give any such
notice shall in no way diminish Tenant's obligation hereunder to pay
such Impositions, unless such failure continues for more than ninety
(90) days after the date Landlord learned of such Imposition.
(b) Utility Charges. Tenant shall pay or cause to be paid all
charges for electricity, power, gas, oil, water and other utilities
used in connection with the Leased Property.
(c) Insurance Premiums. Tenant shall pay or cause to be paid
all premiums for the insurance coverage required to be maintained
pursuant to Article 9.
(d) Other Charges. Tenant shall pay or cause to be paid all
other amounts, liabilities and obligations, including, without
limitation, ground rents and other sums payable under the Ground Lease
and all amounts payable under
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any equipment leases and all agreements to indemnify Landlord under
Sections 4.3.2 and 9.7.
(e) Reimbursement for Additional Charges. If Tenant pays or
causes to be paid property taxes or similar or other Additional Charges
attributable to periods after the end of the Term, whether upon
expiration or sooner termination of this Agreement (other than
termination by reason of an Event of Default), Tenant may, within a
reasonable time after the end of the Term, provide Notice to Landlord
of its estimate of such amounts. Landlord shall promptly reimburse
Tenant for all payments of such taxes and other similar Additional
Charges that are attributable to any period after the Term of this
Agreement.
3.2 Late Payment of Rent, Etc. If any installment of Minimum Rent,
Additional Rent or Additional Charges (but only as to those Additional Charges
which are payable directly to Landlord) shall not be paid within ten (10) days
after its due date, Tenant shall pay Landlord, on demand, as Additional Charges,
a late charge (to the extent permitted by law) computed at the Overdue Rate on
the amount of such installment, from the due date of such installment to the
date of payment thereof. To the extent that Tenant pays any Additional Charges
directly to Landlord or any Hotel Mortgagee pursuant to any requirement of this
Agreement, Tenant shall be relieved of its obligation to pay such Additional
Charges to the Entity to which they would otherwise be due. If any payments due
from Landlord to Tenant shall not be paid within ten (10) days after its due
date, Landlord shall pay to Tenant, on demand, a late charge (to the extent
permitted by law) computed at the Overdue Rate on the amount of such installment
from the due date of such installment to the date of payment thereof.
In the event of any failure by Tenant to pay any Additional Charges
when due, Tenant shall promptly pay and discharge, as Additional Charges, every
fine, penalty, interest and cost which is added for non-payment or late payment
of such items. Landlord shall have all legal, equitable and contractual rights,
powers and remedies provided either in this Agreement or by statute or otherwise
in the case of non-payment of the Additional Charges as in the case of
non-payment of the Minimum Rent and Additional Rent.
3.3 Net Lease. The Rent shall be absolutely net to Landlord so that
this Agreement shall yield to Landlord the full amount of the installments or
amounts of the Rent throughout the Term, subject to any other provisions of this
Agreement which expressly provide otherwise, including those provisions for
adjustment or abatement of such Rent.
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3.4 No Termination, Abatement, Etc. Except as otherwise specifically
provided in this Agreement, each of Landlord and Tenant, to the maximum extent
permitted by law, shall remain bound by this Agreement in accordance with its
terms and shall not take any action without the consent of the other to modify,
surrender or terminate this Agreement. In addition, except as otherwise
expressly provided in this Agreement, Tenant shall not seek, or be entitled to,
any abatement, deduction, deferment or reduction of the Rent, or set-off against
the Rent, nor shall the respective obligations of Landlord and Tenant be
otherwise affected by reason of (a) any damage to or destruction of the Leased
Property or any portion thereof from whatever cause or any Condemnation, (b) the
lawful or unlawful prohibition of, or restriction upon, Tenant's use of the
Leased Property, or any portion thereof, or the interference with such use by
any Person or by reason of eviction by paramount title; (c) any claim which
Tenant may have against Landlord by reason of any default (other than a monetary
default) or breach of any warranty by Landlord under this Agreement or any other
agreement between Landlord and Tenant, or to which Landlord and Tenant are
parties; (d) any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding up or other proceedings
affecting Landlord or any assignee or transferee of Landlord; or (e) for any
other cause whether similar or dissimilar to any of the foregoing (other than a
monetary default by Landlord); provided, however, that the foregoing shall not
apply or be construed to restrict Tenant's rights in the event of any act or
omission by Landlord constituting negligence or willful misconduct. Except as
otherwise specifically provided in this Agreement, Tenant hereby waives all
rights arising from any occurrence whatsoever, which may now or hereafter be
conferred upon it by law (a) to modify, surrender or terminate this Agreement or
quit or surrender the Leased Property or any portion thereof, or (b) which would
entitle Tenant to any abatement, reduction, suspension or deferment of the Rent
or other sums payable or other obligations to be performed by Tenant hereunder.
The obligations of Tenant hereunder shall be separate and independent covenants
and agreements, and the Rent and all other sums payable by Tenant hereunder
shall continue to be payable in all events unless the obligations to pay the
same shall be terminated pursuant to the express provisions of this Agreement.
In any instance where, after the occurrence of an Event of Default, Landlord
retains funds which, but for the occurrence of such Event of Default, would be
payable to Tenant, Landlord shall refund such funds to Tenant to the extent the
amount thereof exceeds the amount necessary to compensate Landlord for any cost,
loss or damage incurred in connection with such Event of Default.
3.5 Retained Funds. Pursuant to the Purchase Agreement, Landlord is
holding the Retained Funds as security for the faithful observance and
performance by Tenant of all the terms, covenants and conditions of this Lease
by Tenant to be observed
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and performed. The Retained Funds shall not be mortgaged, assigned, transferred
or otherwise encumbered by Tenant or any of its Affiliated Persons without the
prior written consent of Landlord and any such act on the part of Tenant or any
of its Affiliated Persons without first having obtained Landlord's consent shall
be without force and effect and shall not be binding upon Landlord.
If an Event of Default shall occur and be continuing, Landlord may, at
its option and without prejudice to any other remedy which Landlord may have on
account thereof, appropriate and apply the entire Retained Funds or so much
thereof as may be necessary to compensate Landlord toward the payment of Rent or
other sums or loss or damage sustained by Landlord due to such breach on the
part of Tenant. It is understood and agreed that the Retained Funds are not to
be considered as prepaid rent, nor shall damages be limited to the amount of the
Retained Funds. Provided no Event of Default shall have occurred and be
continuing, any unapplied balance of the Retained Funds shall be paid to Tenant
or its Affiliated Persons at the end of the Term or, in the event of any early
termination of this Lease with respect to any Property, such portion thereof as
is allocable to such Property (as reasonably determined by Landlord) upon such
termination. Landlord shall have no obligation to pay interest on the Retained
Funds and shall have the right to commingle the same with Landlord's other
funds. If Landlord conveys Landlord's interest under this Lease, the Retained
Funds, or any part thereof not previously applied, shall be turned over by
Landlord to Landlord's grantee, and, if so turned over, Tenant, subject to the
provisions of Section 22.7, shall look solely to such grantee for proper
application of the Retained Funds in accordance with the terms of this Section
3.5 and the return thereof in accordance herewith. The holder of a mortgage on
the Leased Property shall not be responsible to Tenant for the return or
application of the Retained Funds, if it succeeds to the position of Landlord
hereunder, unless the Retained Funds shall have been received in hand by such
holder.
In the event of bankruptcy or other creditor-debtor proceedings against
Tenant, the Retained Funds shall be deemed to be applied first to the payment of
Rent and other charges due Landlord for all periods prior to the filing of such
proceedings.
ARTICLE 4
USE OF THE LEASED PROPERTY
4.1 Permitted Use.
4.1.1 Permitted Use. (a) Tenant shall, at all times during the
Term, subject to temporary periods for the repair of
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damage caused by casualty or Condemnation, continuously use and operate each
Property as an all suites hotel and any uses incidental thereto. Tenant shall
not use or permit to be used any Property or any portion thereof for any other
use without the prior written consent of Landlord, which approval shall not be
unreasonably withheld, delayed or conditioned. Tenant shall not change the brand
of the Hotels without Landlord's prior written consent, which consent shall not
be unreasonably withheld, delayed or conditioned, it being agreed that, on the
Commencement Date, the Hotels shall be operated under the "Xxxxxx Suites" brand.
No use shall be made or permitted to be made of any Property and no acts shall
be done thereon which will cause the cancellation of any insurance policy
covering such Property or any part thereof (unless another adequate policy is
available), nor shall Tenant sell or otherwise provide or permit to be kept,
used or sold in or about any Property any article which may be prohibited by law
or by the standard form of fire insurance policies, or any other insurance
policies required to be carried hereunder, or fire underwriter's regulations.
Tenant shall, at its sole cost, comply with all Insurance Requirements.
(b) In the event that, in the reasonable determination of
Tenant, it shall no longer be economically practical to operate the Leased
Property as an all suites hotel, Tenant shall give Landlord Notice thereof,
which Notice shall set forth in reasonable detail the reasons therefor.
Thereafter, Landlord and Tenant shall negotiate in good faith to agree on an
alternative use for the Property or a replacement property therefor (in which
event the affected Leased Property shall be transferred to Tenant or Tenant's
designee), appropriate adjustments to the Additional Rent and other related
matters; provided, however, in no such event shall the Minimum Rent be reduced
or abated.
4.1.2 Necessary Approvals. Tenant shall proceed with all due
diligence and exercise reasonable efforts to obtain and maintain all approvals
necessary to use and operate, for its Permitted Use, each Property and the Hotel
located thereon under applicable law.
4.1.3 Lawful Use, Etc. Tenant shall not use or suffer or
permit the use of the Leased Property or Tenant's Personal Property, if any, for
any unlawful purpose. Tenant shall not, and shall direct the Manager not to,
commit or suffer to be committed any waste on any Property, or in any Hotel, nor
shall Tenant cause or permit any unlawful nuisance thereon or therein. Tenant
shall not, and shall direct the Manager not to, suffer nor permit the Leased
Property, or any portion thereof, to be used in such a manner as (i) may
materially and adversely impair Landlord's title thereto or to any portion
thereof, or (ii) may reasonably allow a claim or claims for adverse usage or
adverse possession by the public, as such, or of implied dedication of the
Leased Property or any portion thereof.
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4.2 Compliance with Legal/Insurance Requirements, Etc. Subject to the
provisions of Article 8 and Section 5.1.3(b), Tenant, at its sole expense, shall
(i) comply with all material Legal Requirements and Insurance Requirements in
respect of the use, operation, maintenance, repair, alteration and restoration
of the Leased Property and with the terms and conditions of the Ground Lease
and/or any sublease affecting the Leased Property, (ii) perform all obligations
of the landlord under any sublease affecting the Leased Property and (iii)
procure, maintain and comply with all material licenses, and other
authorizations and agreements required for any use of the Leased Property and
Tenant's Personal Property, if any, then being made, and for the proper
erection, installation, operation and maintenance of the Leased Property or any
part thereof.
4.3 Environmental Matters.
4.3.1 Restriction on Use, Etc. During the Term and any other
time that Tenant shall be in possession of the Leased Property, Tenant shall not
store, spill upon, dispose of or transfer to or from the Leased Property any
Hazardous Substance, except in compliance with all Applicable Laws. During the
Term and any other time that Tenant shall be in possession of the Leased
Property, Tenant shall maintain (and shall direct the Manager to maintain) the
Leased Property at all times free of any Hazardous Substance (except in
compliance with all Applicable Laws). Tenant shall promptly: (a) upon receipt of
notice or knowledge and shall direct the Manager upon receipt of notice or
knowledge promptly to, notify Landlord in writing of any material change in the
nature or extent of Hazardous Substances at the Leased Property, (b) transmit to
Landlord a copy of any report which is required to be filed with respect to the
Leased Property pursuant to XXXX Title III or any other Applicable Law, (c)
transmit to Landlord copies of any citations, orders, notices or other
governmental communications received by Tenant or its agents or representatives
with respect thereto (collectively, "Environmental Notice"), which Environmental
Notice requires a written response or any action to be taken and/or if such
Environmental Notice gives notice of and/or presents a material risk of any
material violation of any Applicable Law and/or presents a material risk of any
material cost, expense, loss or damage (an "Environmental Obligation"), (d),
subject to the provisions of Article 8, observe and comply with all Applicable
Laws relating to the use, maintenance and disposal of Hazardous Substances and
all orders or directives from any official, court or agency of competent
jurisdiction relating to the use or maintenance or requiring the removal,
treatment, containment or other disposition thereof, and (e) subject to the
provisions of Article 8, pay or otherwise dispose of any fine, charge or
Imposition related thereto.
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If, at any time prior to the termination of this Agreement, Hazardous
Substances (other than those maintained in accordance with Applicable Laws) are
discovered on the Leased Property, subject to Tenant's right to contest the same
in accordance with Article 8, Tenant shall take all actions and incur any and
all expenses, as are required by any Government Agency and by Applicable Law,
(i) to clean up and remove from and about the Leased Property all Hazardous
Substances thereon, (ii) to contain and prevent any further release or threat of
release of Hazardous Substances on or about the Leased Property and (iii) to use
good faith efforts to eliminate any further release or threat of release of
Hazardous Substances on or about the Leased Property.
4.3.2 Indemnification of Landlord. Tenant shall protect,
indemnify and hold harmless Landlord and each Hotel Mortgagee, their trustees,
officers, agents, employees and beneficiaries, and any of their respective
successors or assigns with respect to this Agreement (collectively, the
"Indemnitees" and, individually, an "Indemnitee") for, from and against any and
all debts, liens, claims, causes of action, administrative orders or notices,
costs, fines, penalties or expenses (including, without limitation, reasonable
attorney's fees and expenses) imposed upon, incurred by or asserted against any
Indemnitee resulting from, either directly or indirectly, the presence during
the Term (or any other time Tenant shall be in possession of the Leased
Property) in, upon or under the soil or ground water of the Leased Property or
any properties surrounding the Leased Property of any Hazardous Substances in
violation of any Applicable Law or otherwise, provided that any of the foregoing
arises by reason of any failure by Tenant or any Person claiming by, through or
under Tenant to perform or comply with any of the terms of this Section 4.3,
except to the extent the same arise from the acts or omissions of Landlord or
any other Indemnitee or during any period that Landlord or a Person designated
by Landlord (other than Tenant) is in possession of the Leased Property.
Tenant's duty herein includes, but is not limited to, costs associated with
personal injury or property damage claims as a result of the presence prior to
the expiration or sooner termination of the Term and the surrender of the Leased
Property to Landlord in accordance with the terms of this Agreement of Hazardous
Substances in, upon or under the soil or ground water of the Leased Property in
violation of any Applicable Law. Upon Notice from Landlord and any other of the
Indemnitees, Tenant shall undertake the defense, at Tenant's sole cost and
expense, of any indemnification duties set forth herein, in which event, Tenant
shall not be liable for payment of any duplicative attorneys' fees incurred by
any Indemnitee.
Tenant shall, upon demand, pay to Landlord, as an Additional Charge,
any cost, expense, loss or damage (including, without limitation, reasonable
attorneys' fees) reasonably incurred by Landlord and arising from a failure of
Tenant to observe and
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perform the requirements of this Section 4.3, which amounts shall bear interest
from the date ten (10) Business Days after written demand therefor is given to
Tenant until paid by Tenant to Landlord at the Overdue Rate.
4.3.3 Survival. The provisions of this Section 4.3 shall
survive the expiration or sooner termination of this Agreement.
ARTICLE 5
MAINTENANCE AND REPAIRS
5.1 Maintenance and Repair.
5.1.1 Tenant's General Obligations. Tenant shall, at its sole
cost and expense (except as expressly provided in Section 5.1.3(b)), keep the
Leased Property and all private roadways, sidewalks and curbs appurtenant
thereto (and Tenant's Personal Property) in good order and repair, reasonable
wear and tear excepted (whether or not the need for such repairs occurs as a
result of Tenant's use, any prior use, the elements or the age of the Leased
Property or Tenant's Personal Property or any portion thereof), and shall
promptly make all necessary and appropriate repairs and replacements thereto of
every kind and nature, whether interior or exterior, structural or
nonstructural, ordinary or extraordinary, foreseen or unforeseen or arising by
reason of a condition existing prior to the commencement of the Term (concealed
or otherwise). All repairs shall be made in a good, workmanlike manner,
consistent with industry standards for like hotels in like locales, in
accordance with all applicable federal, state and local statutes, ordinances,
codes, rules and regulations relating to any such work. Tenant shall not take or
omit to take any action, the taking or omission of which would materially and
adversely impair the value or the usefulness of the Leased Property or any
material part thereof for its Permitted Use. Tenant's obligations under this
Section 5.1.1 shall be limited in the event of any casualty or Condemnation as
set forth in Sections 10.2 and 11.2 and also as set forth in Section 5.1.3(b)
and Tenant's obligations with respect to Hazardous Substances are as set forth
in Section 4.3.
5.1.2 FF&E Reserve.
(a) Upon execution of this Agreement, Tenant has established a
reserve account (the "FF&E Reserve") in a bank designated by Tenant and
approved by Landlord. The purpose of the FF&E Reserve is to cover the
cost of:
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(i) Replacements and renewals to any Hotel's furnishings, fixtures
and equipment;
(ii) Certain routine repairs and maintenance to any Hotel building
which are normally capitalized under GAAP such as exterior and
interior repainting, resurfacing building walls, floors, roofs
and parking areas, and replacing folding walls and the like;
and
(iii) Major repairs, alterations, improvements, renewals or
replacements to any Hotel's buildings' structure, roof, or
exterior facade, or to its mechanical, electrical, heating,
ventilating, air conditioning, plumbing or vertical
transportation systems.
Tenant agrees that it will, from time to time, execute such
reasonable documentation as may be requested by Landlord and any Hotel
Mortgagee to assist Landlord and such Hotel Mortgagee in establishing
or perfecting the Hotel Mortgagee's security interest in Landlord's
residual interest in the funds which are in the FF&E Reserve; provided,
however, that no such documentation shall contain any amendment to or
modification of any of the provisions of this Agreement. It is
acknowledged and agreed that, during the Term, funds in the FF&E
Reserve are the property of Tenant.
(b) Throughout the Term, Tenant shall transfer (within ten
(10) Business Days after the end of each Accounting Period during the
Term) into the FF&E Reserve an amount equal to the Applicable
Percentage of Total Hotel Sales for such Accounting Period. Together
with the documentation provided to Landlord pursuant to Section
3.1.2(c), Tenant shall deliver to Landlord an Officer's Certificate
setting forth the total amount of deposits made to and expenditures
from the FF&E Reserve for the preceding Fiscal Year, together with a
reconciliation of such expenditures with the applicable FF&E Estimate.
(c) With respect to each Lease Year, Tenant shall prepare an
estimate (the "FF&E Estimate") of FF&E Reserve expenditures necessary
during the ensuing Fiscal Year, and shall submit such FF&E Estimate to
Landlord, on or before December 1 of the preceding Lease Year, for its
review and approval, which approval shall not be unreasonably withheld,
delayed or conditioned. In the event that Landlord shall fail to
respond within thirty (30) days after receipt of the FF&E Estimate,
such FF&E Estimate shall be deemed approved by Landlord. All
expenditures from the FF&E Reserve shall be (as to both the amount of
each such expenditure and the timing thereof) both reasonable and
necessary, given the objective that the Hotels will be maintained and
operated to
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a standard comparable to competitive hotels. All amounts from the FF&E
Reserve shall be paid to Persons who are not Affiliated Persons of
Tenant without xxxx-up or allocated internal costs by Tenant or its
Affiliated Persons except that Tenant may use Affiliated Persons to
provide goods and services if Landlord has granted its prior written
approval thereof or the cost is the lesser of (x) the lowest of two
competitive bids therefor submitted by non-Affiliated Persons of Tenant
and (y) fair market.
(d) Tenant shall, consistent with the FF&E Estimate approved
by Landlord, from time to time make expenditures from the FF&E Reserve
as it deems necessary provided that Tenant shall not materially deviate
from the FF&E Estimate approved by Landlord without the prior approval
of Landlord, which approval shall not be unreasonably withheld, delayed
or conditioned, except in the case of emergency where immediate action
is necessary to prevent imminent harm to person or property.
(e) Upon the expiration or sooner termination of this
Agreement, funds in the FF&E Reserve and all property purchased with
funds from the FF&E Reserve during the Term shall be paid, granted and
assigned to Landlord as Additional Charges.
(f) Upon execution of this Agreement, Tenant has deposited the
FF&E Funded Amount into the FF&E Reserve. Notwithstanding anything to
the contrary set forth in this Section 5.1.2, such funds may be used by
Tenant solely for the purpose of completing the Tampa Renovation in
accordance with Exhibit D, unless otherwise agreed by Landlord in
writing.
5.1.3 Landlord's Obligations.
(a) Except as otherwise expressly provided in this Agreement,
Landlord shall not, under any circumstances, be required to build or
rebuild any improvement on the Leased Property, or to make any repairs,
replacements, alterations, restorations or renewals of any nature or
description to the Leased Property, whether ordinary or extraordinary,
structural or nonstructural, foreseen or unforeseen, or to make any
expenditure whatsoever with respect thereto, or to maintain the Leased
Property in any way. Except as otherwise expressly provided in this
Agreement, Tenant hereby waives, to the maximum extent permitted by
law, the right to make repairs at the expense of Landlord pursuant to
any law in effect on the date hereof or hereafter enacted. Landlord
shall have the right to give, record and post, as appropriate, notices
of nonresponsibility under any mechanic's lien laws now or hereafter
existing.
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(b) If, at any time, funds in the FF&E Reserve shall be
insufficient for necessary and permitted expenditures thereof or,
pursuant to the terms of this Agreement, Tenant is required to make any
expenditures in connection with any repair, maintenance or renovation
with respect to the Leased Property and the amount of such
disbursements or expenditures exceeds the amount on deposit in the FF&E
Reserve or such repair, maintenance or renovation is not a permitted
expenditure from the FF&E Reserve as described in Section 5.1.2(a)(i),
(ii) and (iii), Tenant may, at its election, give Landlord Notice
thereof, which Notice shall set forth, in reasonable detail, the nature
of the required repair, renovation or replacement, the estimated cost
thereof and such other information with respect thereto as Landlord may
reasonably require. Provided that no Event of Default shall have
occurred and be continuing and Tenant shall otherwise comply with the
applicable provisions of Article 6, Landlord shall, within ten (10)
Business Days after such Notice, subject to and in accordance with the
applicable provisions of Article 6, disburse such required funds to
Tenant (or, if Tenant shall so elect, directly to any other Person
performing the required work) and, upon such disbursement, the Minimum
Rent shall be adjusted as provided in Section 3.1.1(b); provided,
however, that, in the event that Landlord shall elect not to disburse
any funds pursuant to this Section 5.1.3(b), Tenant's sole recourse
shall be to elect not to make the applicable repair, maintenance or
renovation, and such failure shall, except with respect to the Tampa
Renovation, not be deemed a Default or Event of Default. Tenant shall
include a good faith projection of funds required pursuant to this
Section 5.1.3(b) in the FF&E Estimate.
5.1.4 Nonresponsibility of Landlord, Etc. All materialmen,
contractors, artisans, mechanics and laborers and other persons contracting with
Tenant with respect to the Leased Property, or any part thereof, are hereby
charged with notice that liens on the Leased Property or on Landlord's interest
therein are expressly prohibited and that they must look solely to Tenant to
secure payment for any work done or material furnished by Tenant or for any
other purpose during the term of this Agreement.
Nothing contained in this Agreement shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any contractor, subcontractor, laborer or materialmen
for the performance of any labor or the furnishing of any materials for any
alteration, addition, improvement or repair to the Leased Property or any part
thereof or as giving Tenant any right, power or authority to contract for or
permit the rendering of any
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services or the furnishing of any materials that would give rise to the filing
of any lien against the Leased Property or any part thereof nor to subject
Landlord's estate in the Leased Property or any part thereof to liability under
any mechanic's lien law of any State in any way, it being expressly understood
Landlord's estate shall not be subject to any such liability.
5.2 Tenant's Personal Property. Tenant shall provide and maintain
throughout the Term all such Tenant's Personal Property as shall be necessary in
order to operate in compliance with applicable material Legal Requirements and
Insurance Requirements and otherwise in accordance with customary practice in
the industry for the Permitted Use, and all of such Tenant's Personal Property
shall, upon the expiration or earlier termination of this Agreement, become the
property of Landlord. If, from and after the Commencement Date, Tenant acquires
an interest in any item of tangible personal property (other than motor
vehicles) on, or in connection with, the Leased Property which belongs to anyone
other than Tenant, Tenant shall require the agreements permitting such use to
provide that Landlord or its designee may assume Tenant's rights and obligations
under such agreement upon the termination of this Agreement and the assumption
of management or operation of the Hotel by Landlord or its designee.
5.3 Yield Up. Upon the expiration or sooner termination of this
Agreement, Tenant shall vacate and surrender the Leased Property to Landlord in
substantially the same condition in which the Leased Property was in on the
Commencement Date, except as repaired, rebuilt, restored, altered or added to as
permitted or required by the provisions of this Agreement, reasonable wear and
tear excepted (and casualty damage and Condemnation, in the event that this
Agreement is terminated following a casualty or Condemnation in accordance with
Article 10 or Article 11 excepted), and except for repairs Tenant elects not to
make pursuant to Section 5.1.3(b).
In addition, upon the expiration or earlier termination of this
Agreement, Tenant shall, at Landlord's sole cost and expense, use its good faith
efforts to transfer to and cooperate with Landlord or Landlord's nominee in
connection with the processing of all applications for licenses, operating
permits and other governmental authorizations and all contracts, including
contracts with governmental or quasi-governmental Entities which may be
necessary for the use and operation of the Hotel as then operated. If requested
by Landlord, Tenant will direct the Manager to continue, or if there is no
Manager, Tenant shall continue to manage one or more of the Hotels after the
expiration of the Term and for up to one (1) year, on such reasonable terms
(which shall include a market rate management fee, customary royalty for
non-exclusive license to use the trademarks then being used at the Leased
Property and an agreement to reimburse the Manager or Tenant, as the case may
be,
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for its reasonable out-of-pocket costs and expenses, and reasonable
administrative costs), as Landlord shall reasonably request.
5.4 Management Agreement. Tenant shall not, without Landlord's prior
written consent (which consent shall not be unreasonably withheld, delayed or
conditioned), enter into, or amend or modify the provisions of any Management
Agreement. Any Management Agreement shall be subordinate to this Agreement and
shall provide, inter alia, that all amounts due from Tenant to the Manager shall
be subordinate to all amounts due from Tenant to Landlord (provided that, as
long as no Event of Default has occurred and is continuing, Tenant may pay all
amounts due to a Manager pursuant to a Management Agreement) and for termination
thereof, at Landlord's option, upon the termination of this Agreement. Tenant
shall not take any action, grant any consent or permit any action under any
Management Agreement which might have a material adverse effect on Landlord,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, delayed or conditioned.
ARTICLE 6
IMPROVEMENTS, ETC.
6.1 Improvements to the Leased Property. Tenant shall not make,
construct or install any Capital Additions (other than Capital Additions of the
type described in Section 5.1.2(a)(ii) or 5.1.2(a)(iii) and approved pursuant to
Section 5.1.2(c)) without, in each instance, obtaining Landlord's prior written
consent, which consent shall not be unreasonably withheld, delayed or
conditioned provided that (a) construction or installation of the same would not
adversely affect or violate any material Legal Requirement or Insurance
Requirement applicable to the Leased Property and (b) Landlord shall have
received an Officer's Certificate certifying as to the satisfaction of the
conditions set out in clause (a) above; provided, however, that no such consent
shall be required in the event immediate action is required to prevent imminent
harm to person or property. Prior to commencing construction of any Capital
Addition, Tenant shall submit to Landlord, in writing, a proposal setting forth,
in reasonable detail, any such proposed improvement and shall provide to
Landlord such plans and specifications, and such permits, licenses, contracts
and such other information concerning the same as Landlord may reasonably
request. Landlord shall have thirty (30) days to review all materials submitted
to Landlord in connection with any such proposal. Failure of Landlord to respond
to Tenant's proposal within such 30-day period shall be deemed approval thereof.
Without limiting the generality of the foregoing, such proposal shall indicate
the approximate projected cost of constructing
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such proposed improvement and the use or uses to which it will be put. No
Capital Addition shall be made which would tie in or connect any Leased
Improvements with any other improvements on property adjacent to the Leased
Property (and not part of the Land) including, without limitation, tie-ins of
buildings or other structures or utilities. Except as permitted herein, Tenant
shall not finance the cost of any construction of such improvement by the
granting of a lien on or security interest in the Leased Property or such
improvement, or Tenant's interest therein, without the prior written consent of
Landlord, which consent may be withheld by Landlord in Landlord's sole
discretion. Any such improvements shall, upon the expiration or sooner
termination of this Agreement, remain or pass to and become the property of
Landlord, free and clear of all encumbrances other than Permitted Encumbrances.
6.2 Salvage. All materials which are scrapped or removed in connection
with the making of either Capital Additions or non-Capital Additions or repairs
required by Article 5 shall be or become the property of the party that paid for
such work.
ARTICLE 7
LIENS
7.1 Liens. Subject to Article 8, Tenant shall not, directly or
indirectly, create or allow to remain and shall promptly discharge, at its
expense, any lien, encumbrance, attachment, title retention agreement or claim
upon the Leased Property or Tenant's leasehold interest therein or any
attachment, levy, claim or encumbrance in respect of the Rent, other than (a)
Permitted Encumbrances, (b) restrictions, liens and other encumbrances which are
consented to in writing by Landlord, (c) liens for those taxes of Landlord which
Tenant is not required to pay hereunder, (d) subleases permitted by Article 16,
(e) liens for Impositions or for sums resulting from noncompliance with Legal
Requirements so long as (i) the same are not yet due and payable, or (ii) are
being contested in accordance with Article 8, (f) liens of mechanics, laborers,
materialmen, suppliers or vendors incurred in the ordinary course of business
that are not yet due and payable or are for sums that are being contested in
accordance with Article 8, (g) any Hotel Mortgages or other liens which are the
responsibility of Landlord pursuant to the provisions of Article 20 and (h)
Landlord Liens and any other voluntary liens created by Landlord.
7.2 Landlord's Lien. In addition to any statutory landlord's lien and
in order to secure payment of the Rent and all other sums payable hereunder by
Tenant, and to secure payment of any loss, cost or damage which Landlord may
suffer by reason of Tenant's breach of this Agreement, Tenant hereby grants unto
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Landlord, to the maximum extent permitted by Applicable Law, a security interest
in and an express contractual lien upon Tenant's Personal Property (except motor
vehicles and liquor licenses and permits), and Tenant's interest in all ledger
sheets, files, records, documents and instruments (including, without
limitation, computer programs, tapes and related electronic data processing)
relating to the operation of the Hotels (the "Records") and all proceeds
therefrom, subject to any Permitted Encumbrances; and such Tenant's Personal
Property shall not be removed from the Leased Property at any time when an Event
of Default has occurred and is continuing.
Upon Landlord's request, Tenant shall execute and deliver to Landlord
financing statements in form sufficient to perfect the security interest of
Landlord in Tenant's Personal Property and the proceeds thereof in accordance
with the provisions of the applicable laws of the State. During the continuance
of an Event of Default, Tenant hereby grants Landlord an irrevocable limited
power of attorney, coupled with an interest, to execute all such financing
statements in Tenant's name, place and stead. The security interest herein
granted is in addition to any statutory lien for the Rent.
ARTICLE 8
PERMITTED CONTESTS
Tenant shall have the right to contest the amount or validity of any
Imposition, Legal Requirement, Insurance Requirement, Environmental Obligation,
lien, attachment, levy, encumbrance, charge or claim (collectively, "Claims") as
to the Leased Property, by appropriate legal proceedings, conducted in good
faith and with due diligence, provided that (a) the foregoing shall in no way be
construed as relieving, modifying or extending Tenant's obligation to pay any
Claims as finally determined, (b) such contest shall not cause Landlord or
Tenant to be in default under any mortgage or deed of trust encumbering the
Leased Property (Landlord agreeing that any such mortgage or deed of trust shall
permit Tenant to exercise the rights granted pursuant to this Article 8) or any
interest therein or result in or reasonably be expected to result in a lien
attaching to the Leased Property (unless Tenant shall provide Landlord with a
bond or other assurance reasonably acceptable to Landlord with respect to any
such lien), (c) no part of the Leased Property nor any Rent therefrom shall be
in any immediate danger of sale, forfeiture, attachment or loss, and (d) Tenant
shall indemnify and hold harmless Landlord from and against any cost, claim,
damage, penalty or reasonable expense, including reasonable attorneys' fees,
incurred by Landlord in connection therewith or as a result thereof. Landlord
agrees to join in any such proceedings if required legally to prosecute such
contest,
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provided that Landlord shall not thereby be subjected to any liability therefor
(including, without limitation, for the payment of any costs or expenses in
connection therewith) unless Tenant agrees by agreement in form and substance
reasonably satisfactory to Landlord, to assume and indemnify Landlord with
respect to the same. Tenant shall be entitled to any refund of any Claims and
such charges and penalties or interest thereon which have been paid by Tenant or
paid by Landlord to the extent that Landlord has been fully reimbursed by
Tenant. If Tenant shall fail (x) to pay or cause to be paid any Claims when
finally determined, (y) to provide reasonable security therefor or (z) to
prosecute or cause to be prosecuted any such contest diligently and in good
faith, Landlord may, upon reasonable notice to Tenant (which notice shall not be
required if Landlord shall reasonably determine that the same is not
practicable), pay such charges, together with interest and penalties due with
respect thereto, and Tenant shall reimburse Landlord therefor, upon demand, as
Additional Charges.
ARTICLE 9
INSURANCE AND INDEMNIFICATION
9.1 General Insurance Requirements. Tenant shall, at all times during
the Term and at any other time Tenant shall be in possession of the Leased
Property, keep the Leased Property and all property located therein or thereon,
insured against the risks and in the amounts as follows and shall maintain, with
respect to each Property, the following insurance:
(a) "All-risk" property insurance, including insurance against
loss or damage by fire, vandalism and malicious mischief, earthquake,
explosion of steam boilers, pressure vessels or other similar
apparatus, now or hereafter installed in the Hotel located at such
Property, with the usual extended coverage endorsements, in an amount
equal to one hundred percent (100%) of the then full Replacement Cost
thereof (as defined in Section 9.2);
(b) Business interruption insurance covering risk of loss
during the lesser of the first twelve (12) months of reconstruction or
the actual reconstruction period necessitated by the occurrence of any
of the hazards described in subparagraph (a) above, in such amounts as
may be customary for comparable properties in the area and in an amount
sufficient to prevent Landlord or Tenant from becoming a co-insurer;
(c) Comprehensive general liability insurance, including
bodily injury and property damage in a form reasonably satisfactory to
Landlord (and including, without
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limitation, broad form contractual liability, independent contractor's
hazard and completed operations coverage) in an amount not less than
One Million Dollars ($1,000,000) per occurrence, Two Million Dollars
($2,000,000) in the aggregate and umbrella coverage of all such claims
in an amount not less than Fifty Million Dollars ($50,000,000);
(d) Flood (if such Property is located in whole or in part
within an area identified as an area having special flood hazards and
in which flood insurance has been made available under the National
Flood Insurance Act of 1968, as amended, or the Flood Disaster
Protection Act of 1973, as amended (or any successor acts thereto)) in
such amounts as may be customary for comparable properties in the area;
(e) Worker's compensation insurance coverage if required by
applicable law for all persons employed by Tenant on such Property with
statutory limits and otherwise with limits of and provisions in
accordance with the requirements of applicable local, State and federal
law, and employer's liability insurance as is customarily carried by
similar employers; and
(f) Such additional insurance as may be reasonably required,
from time to time, by Landlord or any Hotel Mortgagee and which is
customarily carried by comparable lodging properties in the area.
9.2 Replacement Cost. "Replacement Cost" as used herein, shall mean the
actual replacement cost of the property requiring replacement from time to time,
including an increased cost of construction endorsement, less exclusions
provided in the standard form of fire insurance policy. In the event either
party believes that the then full Replacement Cost has increased or decreased at
any time during the Term, such party, at its own cost, shall have the right to
have such full Replacement Cost redetermined by an independent accredited
appraiser approved by the other, which approval shall not be unreasonably
withheld or delayed. The party desiring to have the full Replacement Cost so
redetermined shall forthwith, on receipt of such determination by such
appraiser, give Notice thereof to the other. The determination of such appraiser
shall be final and binding on the parties hereto until any subsequent
determination under this Section 9.2, and Tenant shall forthwith conform the
amount of the insurance carried to the amount so determined by the appraiser.
9.3 Waiver of Subrogation. Landlord and Tenant agree that (insofar as
and to the extent that such agreement may be effective without invalidating or
making it impossible to secure insurance coverage from responsible insurance
companies doing business in any State) with respect to any property loss which
is covered by insurance then being carried by Landlord or Tenant,
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respectively, the party carrying such insurance and suffering said loss releases
the other of and from any and all claims with respect to such loss; and they
further agree that their respective insurance companies shall have no right of
subrogation against the other on account thereof, even though extra premium may
result therefrom. In the event that any extra premium is payable by Tenant as a
result of this provision, Landlord shall not be liable for reimbursement to
Tenant for such extra premium.
9.4 Form Satisfactory, Etc. All insurance policies and endorsements
required pursuant to this Article 9 shall be fully paid for, nonassessable and
be issued by insurance carriers authorized to do business in the State, having a
general policy holder's rating of no less than B++ in Best's latest rating
guide. All such policies described in Sections 9.1(a) through (d) shall include
no deductible in excess of Two Hundred Fifty Thousand Dollars ($250,000) (with
the exception of insurance described in Section 9.1(a) providing coverage for
windstorm which may have a deductible not exceeding five percent (5%) of the
policy amount for such insurance or such lesser amount as may be usual and
customary in the insurance industry for like properties) and, with the exception
of the insurance described in Sections 9.1(e), shall name Landlord and any Hotel
Mortgagee as additional insureds, as their interests may appear. All loss
adjustments shall be payable as provided in Article 10, except that losses under
Sections 9.1(c) and (e) shall be payable directly to the party entitled thereto.
Tenant shall cause all insurance premiums to be paid and shall deliver policies
or certificates thereof to Landlord prior to their effective date (and, with
respect to any renewal policy, prior to the expiration of the existing policy).
All such policies shall provide Landlord (and any Hotel Mortgagee if required by
the same) thirty (30) days prior written notice of any material change or
cancellation of such policy. In the event Tenant shall fail to effect such
insurance as herein required, to pay the premiums therefor or to deliver such
policies or certificates to Landlord or any Hotel Mortgagee at the times
required, Landlord shall have the right, upon Notice to Tenant, but not the
obligation, to acquire such insurance and pay the premiums therefor, which
amounts shall be payable to Landlord, upon demand, as Additional Charges,
together with interest accrued thereon at the Overdue Rate from the date such
payment is made until (but excluding) the date repaid.
9.5 Blanket Policy. Notwithstanding anything to the contrary contained
in this Article 9, Tenant's obligation to maintain the insurance herein required
may be brought within the coverage of a so-called blanket policy or policies of
insurance carried and maintained by Tenant, provided, that (a) the coverage
thereby afforded will not be reduced or diminished from that which would exist
under a separate policy meeting all other requirements of this Agreement, and
(b) the requirements of this
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Article 9 are otherwise satisfied. Without limiting the foregoing, the amounts
of insurance that are required to be maintained pursuant to Section 9.1 shall be
on a Hotel by Hotel basis, and shall not be subject to an aggregate limit,
except for flood, earthquake and umbrella coverages.
9.6 No Separate Insurance. Tenant shall not take out separate
insurance, concurrent in form or contributing in the event of loss with that
required by this Article 9, or increase the amount of any existing insurance by
securing an additional policy or additional policies, unless all parties having
an insurable interest in the subject matter of such insurance, including
Landlord and all Hotel Mortgagees, are included therein as additional insureds
and the loss is payable under such insurance in the same manner as losses are
payable under this Agreement. In the event Tenant shall take out any such
separate insurance or increase any of the amounts of the then existing
insurance, Tenant shall give Landlord prompt Notice thereof.
9.7 Indemnification of Landlord. Notwithstanding the existence of any
insurance provided for herein and without regard to the policy limits of any
such insurance, Tenant shall protect, indemnify and hold harmless Landlord for,
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and reasonable expenses (including, without limitation,
reasonable attorneys' fees), to the maximum extent permitted by law, imposed
upon or incurred by or asserted against Landlord by reason of: (a) any accident,
injury to or death of persons or loss of or damage to property occurring on or
about the Leased Property or adjoining sidewalks or rights of way, (b) any past,
present or future use, misuse, non-use, condition, management, maintenance or
repair by Tenant or anyone claiming under Tenant of the Leased Property or
Tenant's Personal Property or any litigation, proceeding or claim by
governmental entities or other third parties to which Landlord is made a party
or participant relating to the Leased Property or Tenant's Personal Property or
such use, misuse, non-use, condition, management, maintenance, or repair thereof
including, failure to perform obligations (other than Condemnation proceedings)
to which Landlord is made a party, (c) any Impositions that are the obligations
of Tenant to pay pursuant to the applicable provisions of this Agreement, and
(d) any failure on the part of Tenant or anyone claiming under Tenant to perform
or comply with any of the terms of this Agreement. Tenant, at its expense, shall
contest, resist and defend any such claim, action or proceeding asserted or
instituted against Landlord (and shall not be responsible for any duplicative
attorneys' fees incurred by Landlord) or may compromise or otherwise dispose of
the same, with Landlord's prior written consent (which consent may not be
unreasonably withheld, delayed or conditioned). The obligations of Tenant under
this Section 9.7 are in addition to the
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obligations set forth in Section 4.3 and shall survive the termination of this
Agreement.
ARTICLE 10
CASUALTY
10.1 Insurance Proceeds. Except as provided in the last clause of this
sentence, all proceeds payable by reason of any loss or damage to any Property,
or any portion thereof, and insured under any policy of insurance required by
Article 9 (other than the proceeds of any business interruption insurance) shall
be paid directly to Landlord (subject to the provisions of Section 10.2) and all
loss adjustments with respect to losses payable to Landlord shall require the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, delayed or conditioned; provided, however, that, so long as no Event
of Default shall have occurred and be continuing, all such proceeds less than or
equal to Five Hundred Thousand Dollars ($500,000) shall be paid directly to
Tenant and such losses may be adjusted without Landlord's consent. If Tenant is
required to reconstruct or repair any Property as provided herein, such proceeds
shall be paid out by Landlord from time to time for the reasonable costs of
reconstruction or repair of such Property necessitated by such damage or
destruction, subject to and in accordance with the provisions of Section 10.2.4.
Provided no Default or Event of Default has occurred and is continuing, any
excess proceeds of insurance remaining after the completion of the restoration
shall be paid to Tenant. In the event that the provisions of Section 10.2.1 are
applicable, the insurance proceeds shall be retained by the party entitled
thereto pursuant to Section 10.2.1.
10.2 Damage or Destruction.
10.2.1 Damage or Destruction of Leased Property. If, during
the Term, any Property shall be totally or partially destroyed and the Hotel
located thereon is thereby rendered Unsuitable for Its Permitted Use, Tenant
may, by the giving of Notice thereof to Landlord, within ninety (90) days after
the date of casualty, terminate this Agreement with respect to such Property, in
which event, Landlord shall be entitled to retain the insurance proceeds payable
on account of such damage, except that Landlord shall pay to Tenant any net
proceeds in excess of the replacement cost of such Property reasonably allocable
to the value of Tenant's leasehold, Tenant's Personal Property and Capital
Additions paid for by Tenant.
10.2.2 Partial Damage or Destruction. If, during the Term, any
Property shall be totally or partially destroyed but the Hotel is not rendered
Unsuitable for Its Permitted Use,
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Tenant shall promptly restore such Hotel as provided in Section 10.2.4 unless
this Agreement is terminated as to such Hotel as provided in Section 10.2.3.
10.2.3 Insufficient Insurance Proceeds. If this Agreement is
not otherwise terminated pursuant to this Article 10 and the cost of the repair
or restoration of the applicable Property exceeds the amount of insurance
proceeds received by Landlord and Tenant pursuant to Section 9(a), (c), (d) or,
if applicable, (f), Tenant shall give Landlord Notice thereof which notice shall
set forth in reasonable detail the nature of such deficiency and whether Tenant
shall pay and assume the amount of such deficiency (Tenant having no obligation
to do so, except that, if Tenant shall elect to make such funds available, the
same shall become an irrevocable obligation of Tenant pursuant to this
Agreement). In the event Tenant shall elect not to pay and assume the amount of
such deficiency, Landlord shall have the right (but not the obligation),
exercisable at Landlord's sole election by Notice to Tenant, given within sixty
(60) days after Tenant's notice of the deficiency, to elect to make available
for application to the cost of repair or restoration the amount of such
deficiency; provided, however, in such event, upon any disbursement by Landlord
thereof, the Minimum Rent shall be adjusted as provided in Section 3.1.1(b). In
the event that neither Landlord nor Tenant shall elect to make such deficiency
available for restoration, either Landlord or Tenant may terminate this
Agreement with respect to the affected Property by Notice to the other,
whereupon, this Agreement shall terminate and insurance proceeds shall be
distributed as provided in Section 10.2.1. It is expressly understood and
agreed, however, that, notwithstanding anything in this Agreement to the
contrary, Tenant shall be strictly liable and solely responsible for the amount
of any deductible and shall, upon any insurable loss, pay over the amount of
such deductible to Landlord at the time and in the manner herein provided for
payment of the applicable proceeds to Landlord.
10.2.4 Disbursement of Proceeds. In the event Tenant is
required to restore any Property pursuant to Section 10.2 and this Agreement is
not terminated as to such Property pursuant to this Article 10, Tenant shall
commence promptly and continue diligently to perform the repair and restoration
of such Property (hereinafter called the "Work"), so as to restore such Property
in material compliance with all Legal Requirements and so that such Property
shall be, to the extent practicable, substantially equivalent in value and
general utility to its general utility and value immediately prior to such
damage or destruction. Subject to the terms hereof, Landlord shall advance the
insurance proceeds and any additional amounts payable by Landlord pursuant to
Section 10.2.3 or otherwise deposited with Landlord to Tenant regularly during
the repair and restoration period so as to permit payment for the cost of any
such restoration and repair.
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Any such advances shall be made not more than monthly within ten (10) Business
Days after Tenant submits to Landlord a written requisition and substantiation
therefor on AIA Forms G702 and G703 (or on such other form or forms as may be
reasonably acceptable to Landlord). Landlord may, at its option, condition
advancement of such insurance proceeds and other amounts on (i) the absence of
any Event of Default, (ii) its approval of plans and specifications of an
architect satisfactory to Landlord (which approval shall not be unreasonably
withheld, delayed or conditioned), (iii) general contractors' estimates, (iv)
architect's certificates, (v) unconditional lien waivers of general contractors,
if available, (vi) evidence of approval by all governmental authorities and
other regulatory bodies whose approval is required, (vii), if Tenant has elected
to advance deficiency funds pursuant to Section 10.2.3, Tenant depositing the
amount thereof with Landlord and (viii) such other certificates as Landlord may,
from time to time, reasonably require.
Landlord's obligation to disburse insurance proceeds under this Article
10 during the last two (2) years of the Term (including any automatic renewals
thereof) shall be subject to the release of such proceeds by any Hotel Mortgagee
to Landlord. If any Hotel Mortgagee shall be unwilling to disburse insurance
proceeds in accordance with the terms of this Agreement, Tenant shall have the
right, by the giving of Notice thereof to Landlord within ten (10) Business Days
after Tenant learns of such unwillingness, to treat such Property as rendered
Unsuitable for its Permitted Use for purposes of Section 10.2.1. Tenant's
obligation to restore the applicable Property pursuant to this Article 10 shall
be subject to the release of available insurance proceeds by the applicable
Hotel Mortgagee to Landlord or directly to Tenant.
10.3 Damage Near End of Term. Notwithstanding any provisions of Section
10.1 or 10.2 to the contrary, if damage to or destruction of any Property occurs
during the last two (2) years of the Term (including any automatic Extended
Terms) and if such damage or destruction cannot reasonably be expected to be
fully repaired and restored prior to the date that is twelve (12) months prior
to the end of the Term, the provisions of Section 10.2.1 shall apply as if such
Property had been totally or partially destroyed and the Hotel thereon rendered
Unsuitable for its Permitted Use.
10.4 Tenant's Property. All insurance proceeds payable by reason of any
loss of or damage to any of Tenant's Personal Property shall be paid to Tenant
and, to the extent necessary to repair or replace Tenant's Personal Property in
accordance with Section 10.5, Tenant shall hold such proceeds in trust to pay
the cost of repairing or replacing damaged Tenant's Personal Property.
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10.5 Restoration of Tenant's Property. If Tenant is required to restore
any Property as hereinabove provided and this Agreement is not terminated as to
such Property pursuant to the terms of Article 10, Tenant shall either (a)
restore all alterations and improvements made by Tenant and Tenant's Personal
Property, or (b) replace such alterations and improvements and Tenant's Personal
Property with improvements or items of the same or better quality and utility in
the operation of such Property. If Tenant is not required to restore and does
not, in fact, restore, Tenant shall pay over to Landlord the amount, if any, of
insurance proceeds received by Tenant with respect to any of Tenant's Personal
Property which was purchased with funds from the FF&E Reserve.
10.6 No Abatement of Rent. Except as expressly provided herein, this
Agreement shall remain in full force and effect and Tenant's obligation to make
all payments of Rent and to pay all other charges as and when required under
this Agreement shall remain unabated during the Term notwithstanding any damage
involving the Leased Property (provided that Landlord shall credit against such
payments any amounts paid to Landlord as a consequence of such damage under any
business interruption insurance obtained by Tenant hereunder). The provisions of
this Article 10 shall be considered an express agreement governing any cause of
damage or destruction to the Leased Property and, to the maximum extent
permitted by law, no local or State statute, laws, rules, regulation or
ordinance in effect during the Term which provide for such a contingency shall
have any application in such case.
10.7 Waiver. Tenant hereby waives any statutory rights of termination
which may arise by reason of any damage or destruction of the Leased Property,
or any portion thereof.
ARTICLE 11
CONDEMNATION
11.1 Total Condemnation, Etc. If either (i) the whole of any Property
shall be taken by Condemnation or (ii) a Condemnation of less than the whole of
any Property renders any Property Unsuitable for Its Permitted Use, this
Agreement shall terminate with respect to such Property, Tenant and Landlord
shall seek the Award for their interests in the applicable Property as provided
in Section 11.6 and, as the effective date of taking, the Minimum Rent payable
hereunder shall be reduced by such Property's allocable share thereof as set
forth in Exhibit C.
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11.2 Partial Condemnation. In the event of a Condemnation of less than
the whole of any Property such that such Property is still suitable for its
Permitted Use, Tenant shall commence promptly and continue diligently to restore
the untaken portion of the applicable Leased Improvements so that such Leased
Improvements shall constitute a complete architectural unit of the same general
character and condition (as nearly as may be possible under the circumstances)
as such Leased Improvements existing immediately prior to such Condemnation, in
material compliance with all Legal Requirements, subject to and unless this
Agreement is terminated pursuant to the provisions of this Section 11.2. If the
cost of the repair or restoration of the affected Property exceeds the amount of
the Award, Tenant shall give Landlord Notice thereof which notice shall set
forth in reasonable detail the nature of such deficiency and whether Tenant
shall pay and assume the amount of such deficiency (Tenant having no obligation
to do so, except that if Tenant shall elect to make such funds available, the
same shall become an irrevocable obligation of Tenant pursuant to this
Agreement). In the event Tenant shall elect not to pay and assume the amount of
such deficiency, Landlord shall have the right (but not the obligation),
exercisable at Landlord's sole election by Notice to Tenant given within sixty
(60) days after Tenant's Notice of the deficiency, to elect to make available
for application to the cost of repair or restoration the amount of such
deficiency; provided, however, in such event, upon any disbursement by Landlord
thereof, the Minimum Rent shall be adjusted as provided in Section 3.1.1(b). In
the event that neither Landlord nor Tenant shall elect to make such deficiency
available for restoration, either Landlord or Tenant may terminate this
Agreement with respect to the affected Property and the entire Award shall be
allocated as set forth in Section 11.6.
Subject to the terms hereof, Landlord shall contribute to the cost of
restoration that part of the Award necessary to complete such repair or
restoration, together with severance and other damages awarded for the taken
Leased Improvements and any other amounts deposited with or payable by Landlord,
to Tenant regularly during the restoration period so as to permit payment for
the cost of such repair or restoration. Landlord may, at its option, condition
advancement of such Award and other amounts on (i) the absence of any Event of
Default, (ii) its approval of plans and specifications of an architect
satisfactory to Landlord (which approval shall not be unreasonably withheld,
delayed or conditioned), (iii) general contractors' estimates, (iv) architect's
certificates, (v) unconditional lien waivers of general contractors, if
available, (vi) evidence of approval by all governmental authorities and other
regulatory bodies whose approval is required, (vii), if Tenant has elected to
advance deficiency funds pursuant to the preceding paragraph, Tenant depositing
the amount thereof with Landlord and (viii) such other certificates as Landlord
may, from time to time, reasonably
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require. Landlord's obligation under this Section 11.2 to disburse the Award and
such other amounts shall be subject to (x) the collection thereof by Landlord
and (y) during the last two (2) years of the Term (including any exercised
renewals thereof), the release of such Award by the applicable Hotel Mortgagee.
If any Hotel Mortgagee shall be unwilling to disburse Award proceeds in
accordance with the terms of this Agreement, Tenant shall have the right, by the
giving of Notice thereof to Landlord within ten (10) Business Days after Tenant
learns of such unwillingness, to treat such Property as rendered Unsuitable for
its Permitted Use for purposes of Section 11.1. Tenant's obligation to restore
the Leased Property shall be subject to the release of the Award by the
applicable Hotel Mortgagee to Landlord or directly to Tenant.
11.3 Abatement of Rent. Other than as specifically provided in this
Agreement, this Agreement shall remain in full force and effect and Tenant's
obligation to make all payments of Rent and to pay all other charges as and when
required under this Agreement shall remain unabated during the Term
notwithstanding any Condemnation involving the Leased Property, or any portion
thereof. The provisions of this Article 11 shall be considered an express
agreement governing any Condemnation involving the Leased Property and, to the
maximum extent permitted by law, no local or State statute, law, rule,
regulation or ordinance in effect during the Term which provides for such a
contingency shall have any application in such case.
11.4 Temporary Condemnation. In the event of any temporary Condemnation
of any Property or Tenant's interest therein, this Agreement shall continue in
full force and effect and Tenant shall continue to pay, in the manner and on the
terms herein specified, the full amount of the Rent. Tenant shall continue to
perform and observe all of the other terms and conditions of this Agreement on
the part of the Tenant to be performed and observed. Provided no Event of
Default has occurred and is continuing, the entire amount of any Award made for
such temporary Condemnation allocable to the Term, whether paid by way of
damages, rent or otherwise, shall be paid to Tenant. Tenant shall, promptly upon
the termination of any such period of temporary Condemnation, at its sole cost
and expense, restore the Leased Property to the condition that existed
immediately prior to such Condemnation, in material compliance with all
applicable Legal Requirements, unless such period of temporary Condemnation
shall extend beyond the expiration of the Term, in which event Tenant shall not
be required to make such restoration.
11.5 Condemnation Near End of Term. Notwithstanding any provisions of
Sections 11.2 or 11.3 to the contrary, if Condemnation of any Property occurs
during the last two (2) years of the Term (including any automatic Extended
Terms) and if restoration cannot reasonably be expected to be completed prior to
the date that is twelve (12) months prior to the end of the
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Term, the provisions of Section 11.1 shall apply as if such Property had been
totally or partially taken and the Hotel thereon rendered Unsuitable for its
Permitted Use.
11.6 Allocation of Award. Except as provided in Section 11.4 and the
second sentence of this Section 11.6, the total Award shall be solely the
property of and payable to Landlord. Any portion of the Award made for the
taking of Tenant's leasehold interest in the Leased Property, loss of business
during the remainder of the Term, the taking of Tenant's Personal Property
(other than any such property purchased with the FF&E Reserve), the taking of
Capital Additions paid for by Tenant and Tenant's removal and relocation
expenses shall be the sole property of and payable to Tenant. In any
Condemnation proceedings, Landlord and Tenant shall each seek its own Award in
conformity herewith, at its own expense.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default" hereunder:
(a) should Tenant fail to make any payment of the Rent or any
other sum (including, but not limited to, funding of the FF&E Reserve)
payable hereunder when due; or
(b) should Tenant fail to maintain the insurance coverages
required under Article 9 and such failure shall continue for ten (10)
Business Days after Notice thereof (except that no Notice shall be
required if any such insurance coverages shall have lapsed); or
(c) should Tenant default in the due observance or performance
of any of the terms, covenants or agreements contained herein to be
performed or observed by it (other than as specified in clauses (a) and
(b) above) and such default shall continue for a period of thirty (30)
days after Notice thereof from Landlord to Tenant; provided, however,
that if such default is susceptible of cure but such cure cannot be
accomplished with due diligence within such period of time and if, in
addition, Tenant commences to cure or cause to be cured such default
within thirty (30) days after Notice thereof from Landlord and
thereafter prosecutes the curing of such default with all due
diligence, such period of time shall be extended to such period of time
(not to exceed an additional one (1) year in the aggregate) as may be
necessary to cure such default with all due diligence; or
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(d) should any obligation of Tenant in excess of One Million
Dollars ($1,000,000) in respect of any Indebtedness for money borrowed
or for any material property or services, or any guaranty relating
thereto, be declared to be or become due and payable prior to the
stated maturity thereof, or should there occur and be continuing with
respect to any such Indebtedness any event of default under any
instrument or agreement evidencing or securing the same, the effect of
which is to permit the holder or holders of such instrument or
agreement or a trustee, agent or other representative on behalf of such
holder or holders, to cause such any such obligations to become due
prior to its stated maturity; or
(e) should an event of default by ShoLodge or Tenant or any
Affiliated Person as to ShoLodge or Tenant occur and be continuing
beyond the expiration of any applicable cure period under any of the
Incidental Documents or by the ShoLodge Parties (as defined therein)
under the Purchase Agreement; or
(f) should any material representation or warranty made by
Tenant or the ShoLodge Parties (as defined in the Purchase Agreement)
under or in connection with this Agreement or any Incidental Document
or, for the period expiring on the first anniversary of the
Commencement Date, the Purchase Agreement, or in any document,
certificate or agreement delivered in connection herewith or therewith,
prove to have been false or misleading in any material respect on the
date when made or deemed made and the same shall continue for five (5)
Business Days after Notice thereof from Landlord; or
(g) should Tenant generally not be paying its debts as they
become due or should Tenant make a general assignment for the benefit
of creditors; or
(h) should any petition be filed by or against Tenant under
the Federal bankruptcy laws, or should any other proceeding be
instituted by or against Tenant seeking to adjudicate Tenant a bankrupt
or insolvent, or seeking liquidation, reorganization, arrangement,
adjustment or composition of Tenant's debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for Tenant or
for any substantial part of the property of Tenant and such proceeding
is not dismissed within one hundred eighty (180) days after institution
thereof; or
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(i) should Tenant cause or institute any proceeding for its
dissolution or termination; or
(j) should the estate or interest of Tenant in the Leased
Property or any part thereof be levied upon or attached in any
proceeding and the same shall not be vacated or discharged within the
later of (x) two hundred seventy (270) days after commencement thereof,
unless the amount in dispute is less than $1,000,000, in which case
Tenant shall give notice to Landlord of the dispute but Tenant may
defend in any suitable way, and (y) two hundred seventy (270) days
after receipt by Tenant of Notice thereof from Landlord (unless Tenant
shall be contesting such lien or attachment in good faith in accordance
with Article 8); or
(k) should Tenant at any time cease to be a wholly owned,
direct or indirect, Subsidiary of ShoLodge;
then, and in any such event, Landlord, in addition to all other remedies
available to it, may terminate this Agreement with respect to any or all of the
Leased Property by giving Notice thereof to Tenant and upon the expiration of
the time, if any, fixed in such Notice, this Agreement shall terminate with
respect to all or the designated portion of the Leased Property and all rights
of Tenant under this Agreement with respect thereto shall cease. Landlord shall
have and may exercise all rights and remedies available at law and in equity to
Landlord as a result of Tenant's breach of this Agreement.
Upon the occurrence of an Event of Default, Landlord may, in addition
to any other remedies provided herein, enter upon the Leased Property or any
portion thereof and take possession of any and all of Tenant's Personal
Property, if any, and the Records, without liability for trespass or conversion
(Tenant hereby waiving any right to notice or hearing prior to such taking of
possession by Landlord) and sell the same at public or private sale, after
giving Tenant reasonable Notice of the time and place of any public or private
sale, at which sale Landlord or its assigns may purchase all or any portion of
Tenant's Personal Property, if any, unless otherwise prohibited by law. Unless
otherwise provided by law and without intending to exclude any other manner of
giving Tenant reasonable notice, the requirement of reasonable Notice shall be
met if such Notice is given at least ten (10) days before the date of sale. The
proceeds from any such disposition, less all expenses incurred in connection
with the taking of possession, holding and selling of such property (including,
reasonable attorneys' fees) shall be applied as a credit against the
indebtedness which is secured by the security interest granted in Section 7.2.
Any surplus shall be paid to Tenant or as otherwise required by law and Tenant
shall pay any deficiency to Landlord, as Additional Charges, upon demand.
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12.2 Remedies. None of (a) the termination of this Agreement pursuant
to Section 12.1, (b) the repossession of the Leased Property or any portion
thereof, (c) the failure of Landlord to re-let the Leased Property or any
portion thereof, nor (d) the reletting of all or any of portion of the Leased
Property, shall relieve Tenant of its liability and obligations hereunder, all
of which shall survive any such termination, repossession or re-letting. In the
event of any such termination, Tenant shall forthwith pay to Landlord all Rent
due and payable with respect to the Leased Property through and including the
date of such termination. Thereafter, Tenant, until the end of what would have
been the Term of this Agreement in the absence of such termination, and whether
or not the Leased Property or any portion thereof shall have been re-let, shall
be liable to Landlord for, and shall pay to Landlord, as current damages, the
Rent (Additional Rent to be reasonably calculated by Landlord based on
historical Total Hotel Sales) and other charges which would be payable hereunder
for the remainder of the Term had such termination not occurred, less the net
proceeds, if any, of any re-letting of the Leased Property, after deducting all
reasonable expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, legal expenses,
attorneys' fees, advertising, expenses of employees, alteration costs and
expenses of preparation for such reletting. Tenant shall pay such current
damages to Landlord monthly on the days on which the Minimum Rent would have
been payable hereunder if this Agreement had not been so terminated with respect
to such of the Leased Property.
At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages beyond the date
of such termination, at Landlord's election, Tenant shall pay to Landlord an
amount equal to the present value (discounted at the Interest Rate) of the
excess, if any, of the Rent and other charges which would be payable hereunder
from the date of such termination (assuming that, for the purposes of this
paragraph, annual payments by Tenant on account of Impositions and Additional
Rent would be the same as payments required for the immediately preceding twelve
calendar months, or if less than twelve calendar months have expired since the
Commencement Date, the payments required for such lesser period projected to an
annual amount) for what would be the then unexpired term of this Agreement if
the same remained in effect, over the fair market rental for the same period.
Nothing contained in this Agreement shall, however, limit or prejudice the right
of Landlord to prove and obtain in proceedings for bankruptcy or insolvency an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater than, equal to, or less than the
amount of the loss or damages referred to above.
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In case of any Event of Default, re-entry, expiration and dispossession
by summary proceedings or otherwise, Landlord may (a) relet the Leased Property
or any part or parts thereof, either in the name of Landlord or otherwise, for a
term or terms which may at Landlord's option, be equal to, less than or exceed
the period which would otherwise have constituted the balance of the Term and
may grant concessions or free rent to the extent that Landlord considers
advisable and necessary to relet the same, and (b) may make such reasonable
alterations, repairs and decorations in the Leased Property or any portion
thereof as Landlord, in its sole and absolute discretion, considers advisable
and necessary for the purpose of reletting the Leased Property; and the making
of such alterations, repairs and decorations shall not operate or be construed
to release Tenant from liability hereunder as aforesaid. Subject to the last
sentence of this paragraph and as long as Landlord uses reasonable efforts to
mitigate its damages as provided in such sentence, Landlord shall in no event be
liable in any way whatsoever for any failure to relet all or any portion of the
Leased Property, or, in the event that the Leased Property is relet, for failure
to collect the rent under such reletting. To the maximum extent permitted by
law, Tenant hereby expressly waives any and all rights of redemption granted
under any present or future laws in the event of Tenant being evicted or
dispossessed, or in the event of Landlord obtaining possession of the Leased
Property, by reason of the occurrence and continuation of an Event of Default
hereunder. Landlord covenants and agrees, in the event of any termination of
this Agreement as a result of an Event of Default, to use reasonable efforts to
mitigate its damages.
12.3 Tenant's Waiver. IF THIS AGREEMENT IS TERMINATED PURSUANT TO
SECTION 12.1 OR 12.2, TENANT WAIVES, TO THE EXTENT PERMITTED BY LAW, ANY RIGHT
TO A TRIAL BY JURY IN THE EVENT OF SUMMARY PROCEEDINGS TO ENFORCE THE REMEDIES
SET FORTH IN THIS ARTICLE 12, AND THE BENEFIT OF ANY LAWS NOW OR HEREAFTER IN
FORCE EXEMPTING PROPERTY FROM LIABILITY FOR RENT OR FOR DEBT.
12.4 Application of Funds. Any payments received by Landlord under any
of the provisions of this Agreement during the existence or continuance of any
Event of Default (and any payment made to Landlord rather than Tenant due to the
existence of any Event of Default) shall be applied to Tenant's current and past
due obligations under this Agreement in such order as Landlord may determine or
as may be prescribed by the laws of the State.
Any balance shall be paid to Tenant.
12.5 Landlord's Right to Cure Tenant's Default. If an Event of Default
shall have occurred and be continuing, Landlord, after Notice to Tenant (which
Notice shall not be required if Landlord shall reasonably determine immediate
action is necessary to protect person or property), without waiving or releasing
any
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obligation of Tenant and without waiving or releasing any Event of Default, may
(but shall not be obligated to), at any time thereafter, make such payment or
perform such act for the account and at the expense of Tenant, and may, to the
maximum extent permitted by law, enter upon the Leased Property or any portion
thereof for such purpose and take all such action thereon as, in Landlord's sole
and absolute discretion, may be necessary or appropriate therefor. No such entry
shall be deemed an eviction of Tenant. All reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees) incurred by Landlord
in connection therewith, together with interest thereon (to the extent permitted
by law) at the Overdue Rate from the date such sums are paid by Landlord until
repaid, shall be paid by Tenant to Landlord, on demand.
ARTICLE 13
HOLDING OVER
Any holding over by Tenant after the expiration or sooner termination
of this Agreement shall be treated as a daily tenancy at sufferance at a rate
equal to two (2) times the Minimum Rent and other charges herein provided
(prorated on a daily basis). Tenant shall also pay to Landlord all damages
(direct or indirect) sustained by reason of any such holding over. Otherwise,
such holding over shall be on the terms and conditions set forth in this
Agreement, to the extent applicable. Nothing contained herein shall constitute
the consent, express or implied, of Landlord to the holding over of Tenant after
the expiration or earlier termination of this Agreement.
ARTICLE 14
LANDLORD'S NOTICE OBLIGATIONS; LANDLORD DEFAULT
14.1 Landlord Notice Obligation. Notwithstanding anything to the
contrary contained herein, Landlord shall give prompt Notice to Tenant of any
matters affecting the Leased Property of which Landlord receives written notice
or actual knowledge and, to the extent Tenant otherwise has no notice or actual
knowledge thereof, Landlord shall be liable for any liabilities arising from the
failure to deliver such Notice to Tenant.
14.2 Landlord's Default. If Landlord shall default in the performance
or observance of any of its covenants or obligations set forth in this Agreement
or any obligation of Landlord, if any, under any agreement affecting the Leased
Property, the performance of which is not Tenant's obligation pursuant to this
Agreement, and any such default shall continue for a period of five (5) Business
Days after Notice thereof with respect to
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monetary defaults and twenty (20) Business Days after Notice thereof with
respect to non-monetary defaults from Tenant to Landlord and any applicable
Hotel Mortgagee, or such additional period as may be reasonably required to
correct the same, provided Landlord is proceeding with due diligence to correct
the same, Tenant may declare the occurrence of a "Landlord Default" by a second
Notice to Landlord and to such Hotel Mortgagee. Thereafter, Tenant may forthwith
cure the same and, subject to the provisions of the following paragraph, invoice
Landlord for costs and expenses (including reasonable attorneys' fees and court
costs) incurred by Tenant in curing the same, together with interest thereon (to
the extent permitted by law) from the date Landlord receives Tenant's invoice
until paid, at the Overdue Rate, and/or offset such amounts against Additional
Rent due and payable hereunder. Tenant shall have no right to terminate this
Agreement for any default by Landlord hereunder and no right, for any such
default, to offset or counterclaim against any Rent or other charges due
hereunder, except with respect to Additional Rent as set forth in the preceding
sentence.
If Landlord shall in good faith dispute the occurrence of any Landlord
Default and Landlord, before the expiration of the applicable cure period, shall
give Notice thereof to Tenant, setting forth, in reasonable detail, the basis
therefor, no Landlord Default shall be deemed to have occurred and Landlord
shall have no obligation with respect thereto until final adverse determination
thereof; provided, however, that in the event of any such adverse determination,
Landlord shall pay to Tenant interest on any disputed funds at the Interest
Rate, from the date demand for such funds was made by Tenant until the date of
final adverse determination and, thereafter, at the Overdue Rate until paid. If
Tenant and Landlord shall fail, in good faith, to resolve any such dispute
within ten (10) days after Landlord's Notice of dispute, either may submit the
matter for resolution to a court of competent jurisdiction.
14.3 Indemnification of Tenant. Notwithstanding the existence of any
insurance provided for herein and without regard to the policy limits of any
such insurance, Landlord shall protect, indemnify and hold harmless Tenant for,
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and reasonable expenses (including, without limitation,
reasonable attorneys' fees), to the maximum extent permitted by law, imposed
upon or incurred by or asserted against Tenant by reason of: (a) any Impositions
that are the obligations of Landlord to pay pursuant to the applicable
provisions of this Agreement, and (b) any failure on the part of Landlord or
anyone claiming under Landlord to perform or comply with any of the terms of
this Agreement. Landlord, at its expense, shall contest, resist and defend any
such claim, action or proceeding asserted or instituted against Tenant (and
shall not be responsible for any duplicative attorneys' fees incurred
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by Tenant) or may compromise or otherwise dispose of the same, with Tenant's
prior written consent (which consent may not be unreasonably withheld, delayed
or conditioned). The obligations of Landlord under this Section 14.3 shall
survive termination of this Agreement.
ARTICLE 15
PURCHASE RIGHTS
Landlord shall have the option to purchase Tenant's Personal Property,
at the expiration or termination of this Agreement, for an amount equal to the
then net market value thereof (current replacement cost as determined by
agreement of the parties or, in the absence of such agreement, appraisal, less
accumulated depreciation on Tenant's books pertaining thereto), subject to, and
with appropriate price adjustments for, all equipment leases, conditional sale
contracts, UCC-1 financing statements and other encumbrances to which such
Personal Property is subject (except that any such property purchased with the
FF&E Reserve shall be transferred to Landlord as provided in Section 5.1.2(e)).
Upon the expiration or sooner termination of this Agreement, Tenant shall use
its reasonable efforts to transfer and assign to Landlord or its designee, or
assist Landlord or its designee in obtaining, any contracts, licenses, and
certificates required for the then operation of the Leased Property.
ARTICLE 16
SUBLETTING AND ASSIGNMENT
16.1 Subletting and Assignment. Except as provided in Section 16.3,
Tenant shall not, without Landlord's prior written consent (which consent may be
given or withheld in Landlord's sole and absolute discretion), assign, mortgage,
pledge, hypothecate, encumber or otherwise transfer this Agreement or sublease
(which term shall be deemed to include the granting of concessions, licenses and
the like but shall not be deemed to include the lodging of hotel guests
consistent with the Permitted Use), all or any part of the Leased Property or
suffer or permit this Agreement or the leasehold estate created hereby or any
other rights arising under this Agreement to be assigned, transferred,
mortgaged, pledged, hypothecated or encumbered, in whole or in part, whether
voluntarily, involuntarily or by operation of law, or permit the use or
operation of the Leased Property by anyone other than Tenant, or the Leased
Property to be offered or advertised for assignment or subletting; provided,
however, that an assignment to a wholly owned Subsidiary (direct or indirect) of
ShoLodge shall be permitted without the consent of, but upon Notice to,
Landlord. For purposes of this Section
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16.1, an assignment of this Agreement shall be deemed to include any direct or
indirect transfer of any interest in Tenant such that Tenant shall cease to be a
wholly owned direct or indirect Subsidiary of ShoLodge or any transaction
pursuant to which Tenant is merged or consolidated with another Entity or
pursuant to which all or substantially all of Tenant's assets are transferred to
any other Entity, as if such change in control or transaction were an assignment
of this Agreement, unless such Entity is a wholly owned Subsidiary (direct or
indirect) of ShoLodge.
If this Agreement is assigned or if the Leased Property or any part
thereof are sublet (or occupied by anybody other than Tenant and their
respective employees or hotel guests) Landlord may collect the rents from such
assignee, subtenant or occupant, as the case may be, and apply the net amount
collected to the Rent herein reserved, but no such collection shall be deemed a
waiver of the provisions set forth in the first paragraph of this Section 16.1,
the acceptance by Landlord of such assignee, subtenant or occupant, as the case
may be, as a tenant, or a release of Tenant from the future performance by
Tenant of its covenants, agreements or obligations contained in this Agreement.
No subletting or assignment shall in any way impair the continuing
primary liability of Tenant hereunder (unless Landlord and Tenant expressly
otherwise agree that Tenant shall be released from all obligations hereunder),
and no consent to any subletting or assignment in a particular instance shall be
deemed to be a waiver of the prohibition set forth in this Section 16.1. No
assignment, subletting or occupancy shall affect any Permitted Use. Any
subletting, assignment or other transfer of Tenant's interest under this
Agreement in contravention of this Section 16.1 shall be voidable at Landlord's
option.
16.2 Required Sublease Provisions. Any sublease of all or any portion
of the Leased Property entered into on or after the date hereof shall provide
(a) that it is subject and subordinate to this Agreement and to the matters to
which this Agreement is or shall be subject or subordinate; (b) that in the
event of termination of this Agreement or reentry or dispossession of Tenant by
Landlord under this Agreement, Landlord may, at its option, terminate such
sublease or take over all of the right, title and interest of Tenant, as
sublessor under such sublease, and such subtenant shall, at Landlord's option,
attorn to Landlord pursuant to the then executory provisions of such sublease,
except that neither Landlord nor any Hotel Mortgagee, as holder of a mortgage or
as Landlord under this Agreement, if such mortgagee succeeds to that position,
shall (i) be liable for any act or omission of Tenant under such sublease, (ii)
be subject to any credit, counterclaim, offset or defense which theretofore
accrued to such subtenant against Tenant, (iii) be
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bound by any previous modification of such sublease not consented to in writing
by Landlord or by any previous prepayment of more than one (1) month's rent,
(iv) be bound by any covenant of Tenant to undertake or complete any
construction of the Leased Property or any portion thereof, (v) be required to
account for any Retained Funds of the subtenant other than any Retained Funds
actually delivered to Landlord by Tenant, (vi) be bound by any obligation to
make any payment to such subtenant or grant any credits, except for services,
repairs, maintenance and restoration provided for under the sublease that are
performed after the date of such attornment, (vii) be responsible for any monies
owing by Tenant to the credit of such subtenant unless actually delivered to
Landlord by Tenant, or (viii) be required to remove any Person occupying any
portion of the Leased Property; and (c), in the event that such subtenant
receives a written Notice from Landlord or any Hotel Mortgagee stating that an
Event of Default has occurred and is continuing, such subtenant shall thereafter
be obligated to pay all rentals accruing under such sublease directly to the
party giving such Notice or as such party may direct. All rentals received from
such subtenant by Landlord or the Hotel Mortgagee, as the case may be, shall be
credited against the amounts owing by Tenant under this Agreement and such
sublease shall provide that the subtenant thereunder shall, at the request of
Landlord, execute a suitable instrument in confirmation of such agreement to
attorn. An original counterpart of each such sublease and assignment and
assumption, duly executed by Tenant and such subtenant or assignee, as the case
may be, in form and substance reasonably satisfactory to Landlord, shall be
delivered promptly to Landlord and (a) in the case of an assignment, the
assignee shall assume in writing and agree to keep and perform all of the terms
of this Agreement on the part of Tenant to be kept and performed and shall be,
and become, jointly and severally liable with Tenant for the performance thereof
and (b) in case of either an assignment or subletting, Tenant shall remain
primarily liable, as principal rather than as surety, for the prompt payment of
the Rent and for the performance and observance of all of the covenants and
conditions to be performed by Tenant hereunder.
The provisions of this Section 16.2 shall not be deemed a waiver of the
provisions set forth in the first paragraph of Section 16.1.
16.3 Permitted Sublease. Notwithstanding the foregoing, including,
without limitation, Section 16.2, but subject to the provisions of Section 16.4
and any other express conditions or limitations set forth herein, Tenant may, in
each instance after Notice to Landlord, sublease space at any Property for
newsstand, car rental agency, business services office, gift shop, parking
garage, health club, restaurant, bar or commissary purposes or other concessions
in furtherance of the Permitted Use, so long as such subleases do not demise, in
the aggregate, in excess of two
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thousand (2,000) square feet per Property or, in the case of a restaurant or
bar, four thousand (4,000) square feet per Property, will not violate or affect
any Legal Requirement or Insurance Requirement, and Tenant shall provide such
additional insurance coverage applicable to the activities to be conducted in
such subleased space as Landlord and any Hotel Mortgagee may reasonably require.
16.4 Sublease Limitation. For so long as Landlord or any Affiliated
Person as to Landlord shall seek to qualify as a real estate investment trust,
anything contained in this Agreement to the contrary notwithstanding, Tenant
shall not sublet the Leased Property on any basis such that the rental to be
paid by any sublessee thereunder would be based, in whole or in part, on the
income or profits derived by the business activities of such sublessee, any
other formula such that any portion of such sublease rental would fail to
qualify as "rents from real property" within the meaning of Section 856(d) of
the Code, or any similar or successor provision thereto or would otherwise
disqualify Landlord for treatment as a real estate investment trust.
ARTICLE 17
ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS
17.1 Estoppel Certificates. At any time and from time to time, but not
more than a reasonable amount of times per year, upon not less than ten (10)
Business Days prior Notice by either party, the party receiving such Notice
shall furnish to the other an Officer's Certificate certifying that this
Agreement is unmodified and in full force and effect (or that this Agreement is
in full force and effect as modified and setting forth the modifications), the
date to which the Rent has been paid, that no Default or an Event of Default has
occurred and is continuing or, if a Default or an Event of Default shall exist,
specifying in reasonable detail the nature thereof, and the steps being taken to
remedy the same, and such additional information as the requesting party may
reasonably request. Any such certificate furnished pursuant to this Section 17.1
may be relied upon by the requesting party, its lenders and any prospective
purchaser or mortgagee of the Leased Property or the leasehold estate created
hereby.
17.2 Financial Statements. Tenant shall furnish or cause ShoLodge to
furnish, as applicable, the following statements to Landlord:
(a) within fifty (50) days after each of the first three
fiscal quarters of any Fiscal Year, the most recent
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Consolidated Financials, accompanied by the Financial Officer's
Certificate;
(b) within one hundred (100) days after the end of each Fiscal
Year, the most recent Consolidated Financials and financials of Tenant
for such year, certified by an independent certified public accountant
reasonably satisfactory to Landlord and accompanied by a Financial
Officer's Certificate;
(c) within thirty (30) days after the end of each month, an
unaudited operating statement and statement of capital expenditures
prepared on a Hotel by Hotel basis and a combined basis, including
occupancy percentages and average rate, accompanied by a Financial
Officer's Certificate;
(d) at any time and from time to time upon not less than
twenty (20) days Notice from Landlord or such additional period as may
be reasonable under the circumstances, any Consolidated Financials,
Tenant financials or any other audited or unaudited financial reporting
information required to be filed by Landlord with any securities and
exchange commission, the SEC or any successor agency, or any other
governmental authority, or required pursuant to any order issued by any
court, governmental authority or arbitrator in any litigation to which
Landlord is a party, for purposes of compliance therewith; and
(e) promptly, upon Notice from Landlord, such other
information concerning the business, financial condition and affairs of
Tenant and ShoLodge as Landlord reasonably may request from time to
time.
Landlord may at any time, and from time to time, provide any Hotel
Mortgagee with copies of any of the foregoing statements, subject to Landlord
obtaining the agreement of such Hotel Mortgagee to maintain such statements and
the information therein as confidential.
ARTICLE 18
LANDLORD'S RIGHT TO INSPECT
Tenant shall permit Landlord and its authorized representatives to
inspect the Leased Property during usual business hours upon not less than
forty-eight (48) hours' notice and to make such repairs as Landlord is permitted
or required to make pursuant to the terms of this Agreement, provided that any
inspection or repair by Landlord or its representatives will not
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unreasonably interfere with Tenant's use and operation of the Leased Property
and further provided that in the event of an emergency, as determined by
Landlord in its reasonable discretion, prior Notice shall not be necessary.
ARTICLE 19
EASEMENTS
19.1 Grant of Easements. Provided no Event of Default has occurred and
is continuing, Landlord will join in granting and, if necessary, modifying or
abandoning such rights-of-way, easements and other interests as may be
reasonably requested by Tenant for ingress and egress, and electric, telephone,
gas, water, sewer and other utilities so long as:
(a) the instrument creating, modifying or abandoning any such
easement, right-of-way or other interest is satisfactory to and
approved by Landlord (which approval shall not be unreasonably
withheld, delayed or conditioned); and
(b) Landlord receives an Officer's Certificate from Tenant
stating (i) that such grant, modification or abandonment is not
detrimental to the proper conduct of business on such Property, (ii)
the consideration, if any, being paid for such grant, modification or
abandonment (which consideration shall be paid by Tenant), (iii) that
such grant, modification or abandonment does not impair the use or
value of such Property for the Permitted Use, and (iv) that, for as
long as this Agreement shall be in effect, Tenant will perform all
obligations, if any, of Landlord under any such instrument.
19.2 Exercise of Rights by Tenant. So long as no Event of Default has
occurred and is continuing, Tenant shall have the right to exercise all rights
of Landlord under the Easement Agreements and, in connection therewith, Landlord
shall execute and promptly return to Tenant such documents as Tenant shall
reasonably request. Tenant shall perform all obligations of Landlord under the
Easement Agreements.
19.3 Permitted Encumbrances. Any agreements entered into in accordance
with Section 19.1 shall be deemed a Permitted Encumbrance.
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ARTICLE 20
HOTEL MORTGAGES
20.1 Landlord May Grant Liens. Without the consent of Tenant, Landlord
may, subject to the terms and conditions set forth in this Section 20.1, from
time to time, directly or indirectly, create or otherwise cause to exist any
lien, encumbrance or title retention agreement ("Encumbrance") upon the Leased
Property, or any portion thereof or interest therein, whether to secure any
borrowing or other means of financing or refinancing. Notwithstanding anything
to the contrary set forth in Section 20.2, any such Encumbrance shall include
the right to prepay (whether or not subject to a prepayment penalty) and shall
provide (subject to Section 20.2) that it is subject to the rights of Tenant
under this Agreement.
20.2 Subordination of Lease. Subject to Section 20.1 and this Section
20.2, this Agreement and any and all rights of Tenant hereunder, are and shall
be subject and subordinate to any ground or master lease, and all renewals,
extensions, modifications and replacements thereof, and to all mortgages and
deeds of trust, which may now or hereafter affect the Leased Property or any
improvements thereon and/or any of such leases, whether or not such mortgages or
deeds of trust shall also cover other lands and/or buildings and/or leases, to
each and every advance made or hereafter to be made under such mortgages and
deeds of trust, and to all renewals, modifications, replacements and extensions
of such leases and such mortgages and deeds of trust and all consolidations of
such mortgages and deeds of trust. This section shall be self-operative and no
further instrument of subordination shall be required provided that Tenant has
received a nondisturbance and attornment agreement from each Superior Mortgagee
(as defined below), consistent with the provisions of this Section 20.2 and
otherwise in form and substance reasonably satisfactory to Tenant. In
confirmation of such subordination, Tenant shall promptly execute, acknowledge
and deliver any instrument that Landlord, the lessor under any such lease or the
holder of any such mortgage or the trustee or beneficiary of any deed of trust
or any of their respective successors in interest may reasonably request to
evidence such subordination. Any lease to which this Agreement is, at the time
referred to, subject and subordinate is herein called "Superior Lease" and the
lessor of a Superior Lease or its successor in interest at the time referred to
is herein called "Superior Landlord" and any mortgage or deed of trust to which
this Agreement is, at the time referred to, subject and subordinate is herein
called "Superior Mortgage" and the holder, trustee or beneficiary of a Superior
Mortgage is herein called "Superior Mortgagee".
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If any Superior Landlord or Superior Mortgagee or the nominee or
designee of any Superior Landlord or Superior Mortgagee shall succeed to the
rights of Landlord under this Agreement (any such person, "Successor Landlord"),
whether through possession or foreclosure action or delivery of a new lease or
deed, or otherwise, such Successor Landlord shall recognize Tenant's rights
under this Agreement as herein provided and Tenant shall attorn to and recognize
the Successor Landlord as Tenant's landlord under this Agreement and Tenant
shall promptly execute and deliver any instrument that such Successor Landlord
may reasonably request to evidence such attornment (provided that such
instrument does not alter the terms of this Agreement), whereupon, this
Agreement shall continue in full force and effect as a direct lease between the
Successor Landlord and Tenant upon all of the terms, conditions and covenants as
are set forth in this Agreement, except that the Successor Landlord (unless
formerly the landlord under this Agreement or its nominee or designee) shall not
be (a) liable in any way to Tenant for any act or omission, neglect or default
on the part of any prior Landlord under this Agreement, (b) responsible for any
monies owing by or on deposit with any prior Landlord to the credit of Tenant
(except to the extent actually paid or delivered to the Successor Landlord), (c)
subject to any counterclaim or setoff which theretofore accrued to Tenant
against any prior Landlord, (d) bound by any modification of this Agreement
subsequent to such Superior Lease or Mortgage, or by any previous prepayment of
Rent for more than one (1) month in advance of the date due hereunder, which was
not approved in writing by the Superior Landlord or the Superior Mortgagee
thereto, (e) liable to Tenant beyond the Successor Landlord's interest in the
Leased Property and the rents, income, receipts, revenues, issues and profits
issuing from the Leased Property, (f) responsible for the performance of any
work to be done by the Landlord under this Agreement to render the Leased
Property ready for occupancy by Tenant, or (g) required to remove any Person
occupying the Leased Property or any part thereof, except if such person claims
by, through or under the Successor Landlord. Tenant agrees at any time and from
time to time to execute a suitable instrument in confirmation of Tenant's
agreement to attorn, as aforesaid and Landlord agrees to provide Tenant with an
instrument of nondisturbance and attornment from each such Superior Mortgagee
and Superior Landlord in form and substance reasonably satisfactory to Tenant.
Nothing contained in this Section 20.2 shall relieve Landlord from any liability
to Tenant under this Agreement following the exercise of remedies by a Superior
Mortgagee.
20.3 Notice to Mortgagee and Superior Landlord. Subsequent to the
receipt by Tenant of Notice from Landlord as to the identity of any Hotel
Mortgagee or Superior Landlord under a lease with Landlord, as ground lessee,
which includes the Leased Property as part of the demised premises and which
complies with
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Section 20.1 and 20.2 (which Notice shall be accompanied by a copy of the
applicable mortgage or lease), no Notice from Tenant to Landlord as to a default
by Landlord under this Agreement shall be effective with respect to a Hotel
Mortgagee or Superior Landlord unless and until a copy of the same is given to
such Hotel Mortgagee or Superior Landlord at the address set forth in the above
described Notice, and the curing of any of Landlord's defaults within the
applicable notice and cure periods set forth in Section 14.2 by such Hotel
Mortgagee or Superior Landlord shall be treated as performance by Landlord.
ARTICLE 21
ADDITIONAL COVENANTS OF TENANT
21.1 Prompt Payment of Indebtedness. Tenant shall (a) pay or cause to
be paid when due all payments of principal of and premium and interest on
Tenant's Indebtedness for money borrowed and shall not permit or suffer any such
Indebtedness to become or remain in default beyond any applicable grace or cure
period, (b) pay or cause to be paid when due all lawful claims for labor and
rents with respect to the Leased Property, (c) pay or cause to be paid when due
all trade payables and (d) pay or cause to be paid when due all other of
Tenant's Indebtedness upon which it is or becomes obligated, except, in each
case, other than that referred to in clause (a), to the extent payment is being
contested in good faith by appropriate proceedings in accordance with Article 8
and if Tenant shall have set aside on its books adequate reserves with respect
thereto in accordance with GAAP, if appropriate, or unless and until
foreclosure, distraint sale or other similar proceedings shall have been
commenced.
21.2 Conduct of Business. Tenant shall not engage in any business other
than the leasing and operation of the Leased Property (including any incidental
or ancillary business relating thereto) and shall do or cause to be done all
things necessary to preserve, renew and keep in full force and effect and in
good standing its corporate existence and its rights and licenses necessary to
conduct such business.
21.3 Maintenance of Accounts and Records. Tenant shall keep true
records and books of account of Tenant in which full, true and correct entries
will be made of dealings and transactions in relation to the business and
affairs of Tenant in accordance with GAAP. Tenant shall apply accounting
principles in the preparation of the financial statements of Tenant which, in
the judgment of and the opinion of its independent public accountants, are in
accordance with GAAP, where applicable, except for changes approved by such
independent public accountants. Tenant shall provide to Landlord either in a
footnote to the financial statements delivered under Section 17.2
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which relate to the period in which such change occurs, or in separate schedules
to such financial statements, information sufficient to show the effect of any
such changes on such financial statements.
21.4 Notice of Litigation, Etc. Tenant shall give prompt Notice to
Landlord of any litigation or any administrative proceeding to which it may
hereafter become a party of which Tenant has notice or actual knowledge which
involves a potential liability equal to or greater than Five Hundred Thousand
Dollars ($500,000) or which may otherwise result in any material adverse change
in the business, operations, property, prospects, results of operation or
condition, financial or other, of Tenant. Forthwith upon Tenant obtaining
knowledge of any Default, Event of Default or any default or event of default
under any agreement relating to Indebtedness for money borrowed in an aggregate
amount exceeding, at any one time, Five Hundred Thousand Dollars ($500,000), or
any event or condition that would be required to be disclosed in a current
report filed by Tenant on Form 8-K or in Part II of a quarterly report on Form
10-Q if Tenant were required to file such reports under the Securities Exchange
Act of 1934, as amended, Tenant shall furnish Notice thereof to Landlord
specifying the nature and period of existence thereof and what action Tenant has
taken or is taking or proposes to take with respect thereto.
21.5 Indebtedness of Tenant. Tenant shall not create, incur, assume or
guarantee, or permit to exist, or become or remain liable directly or indirectly
upon, any Indebtedness except the following:
(a) Indebtedness of Tenant to Landlord;
(b) Indebtedness of Tenant for Impositions, to the extent that
payment thereof shall not at the time be required to be made in
accordance with the provisions of Article 8;
(c) Indebtedness of Tenant in respect of judgments or awards
(i) which have been in force for less than the applicable appeal period
and in respect of which execution thereof shall have been stayed
pending such appeal or review, or (ii) which are fully covered by
insurance payable to Tenant, or (iii) which are for an amount not in
excess of $500,000 in the aggregate at any one time outstanding and (x)
which have been in force for not longer than the applicable appeal
period, so long as execution is not levied thereunder or (y) in respect
of which an appeal or proceedings for review shall at the time be
prosecuted in good faith in accordance with the provisions of Article
8, and in respect of which execution thereof shall have been stayed
pending such appeal or review;
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(d) unsecured borrowings of Tenant from its Affiliated Persons
which are by their terms expressly subordinate pursuant to a
Subordination Agreement to the payment and performance of Tenant's
obligations under this Agreement; or
(e) Indebtedness for purchase money financing in accordance
with Section 21.9(a) and other operating liabilities incurred in the
ordinary course of Tenant's business.
21.6 Financial Condition of Tenant. Tenant shall at all times maintain
Net Worth (except as provided in the last clause of this sentence) in an amount
at least equal to the aggregate of one year's Minimum Rent payable pursuant to
this Agreement; it being expressly understood and agreed that the right to
receive the Retained Funds, if assigned to Tenant, may for such purpose be
counted as equity at the full amount thereof.
21.7 Distributions, Payments to Affiliated Persons, Etc. Tenant shall
not declare, order, pay or make, directly or indirectly, any Distributions or
any payment to any Affiliated Person of Tenant (including payments in the
ordinary course of business and payments pursuant to Management Agreements with
any such Affiliated Person) or set apart any sum or property therefor, or agree
to do so, if, at the time of such proposed action, or immediately after giving
effect thereto, any Event of Default shall have occurred and be continuing.
Otherwise, as long as no Event of Default shall have occurred and be continuing,
Tenant may make Distributions and payments to Affiliated Persons (other than
from the FF&E Reserve which shall be governed by Section 5.1.2) without
restriction.
21.8 Prohibited Transactions. Tenant shall not permit to exist or enter
into any agreement or arrangement whereby it engages in a transaction of any
kind with any Affiliated Person as to Tenant, except on terms and conditions
which are commercially reasonable.
21.9 Liens and Encumbrances. Except as permitted by Section 7.1 and
Section 21.5, Tenant shall not create or incur or suffer to be created or
incurred or to exist any Lien on this Agreement or any of Tenant's assets,
properties, rights or income, or any of its interest therein, now or at any time
hereafter owned, other than:
(a) Security interests securing the purchase price of
equipment or personal property whether acquired before or after the
Commencement Date; provided, however, that (i) such Lien shall at all
times be confined solely to the asset in question and (ii) the
aggregate principal amount of Indebtedness secured by any such Lien
shall not exceed the
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cost of acquisition or construction of the property subject thereto;
(b) Permitted Encumbrances; and
(c) As permitted pursuant to Section 21.5.
21.10 Merger; Sale of Assets; Etc. Tenant shall not (i) sell, lease (as
lessor or sublessor), transfer or otherwise dispose of, or abandon, all or any
material portion of its assets (including capital stock) or business to any
Person, unless such Person is a wholly owned Subsidiary, direct or indirect, of
ShoLodge (in which event Tenant shall give Landlord prior Notice thereof), (ii)
merge into or with or consolidate with any other Entity, unless such Entity is a
wholly owned Subsidiary, direct or indirect, of ShoLodge (in which event Tenant
shall give Landlord prior Notice thereof), or (iii) sell, lease (as lessor or
sublessor), transfer or otherwise dispose of, or abandon, any personal property
or fixtures or any real property; provided, however, that, notwithstanding the
provisions of clause (iii) preceding, Tenant may dispose of equipment or
fixtures which have become inadequate, obsolete, worn-out, unsuitable,
undesirable or unnecessary, provided substitute equipment or fixtures having
equal or greater value and utility (but not necessarily having the same
function) have been provided.
ARTICLE 22
MISCELLANEOUS
22.1 Limitation on Payment of Rent. All agreements between Landlord and
Tenant herein are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of acceleration of Rent, or otherwise, shall the
Rent or any other amounts payable to Landlord under this Agreement exceed the
maximum permissible under applicable law, the benefit of which may be asserted
by Tenant as a defense, and if, from any circumstance whatsoever, fulfillment of
any provision of this Agreement, at the time performance of such provision shall
be due, shall involve transcending the limit of validity prescribed by law, or
if from any circumstances Landlord should ever receive as fulfillment of such
provision such an excessive amount, then, ipso facto, the amount which would be
excessive shall be applied to the reduction of the installment(s) of Minimum
Rent next due and not to the payment of such excessive amount. This provision
shall control every other provision of this Agreement and any other agreements
between Landlord and Tenant.
22.2 No Waiver. No failure by Landlord or Tenant to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no
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acceptance of full or partial payment of Rent during the continuance of any such
breach, shall constitute a waiver of any such breach or of any such term. To the
maximum extent permitted by law, no waiver of any breach shall affect or alter
this Agreement, which shall continue in full force and effect with respect to
any other then existing or subsequent breach.
22.3 Remedies Cumulative. To the maximum extent permitted by law, each
legal, equitable or contractual right, power and remedy of Landlord or Tenant,
now or hereafter provided either in this Agreement or by statute or otherwise,
shall be cumulative and concurrent and shall be in addition to every other
right, power and remedy and the exercise or beginning of the exercise by
Landlord or Tenant (as applicable) of any one or more of such rights, powers and
remedies shall not preclude the simultaneous or subsequent exercise by Landlord
of any or all of such other rights, powers and remedies.
22.4 Severability. Any clause, sentence, paragraph, section or
provision of this Agreement held by a court of competent jurisdiction to be
invalid, illegal or ineffective shall not impair, invalidate or nullify the
remainder of this Agreement, but rather the effect thereof shall be confined to
the clause, sentence, paragraph, section or provision so held to be invalid,
illegal or ineffective, and this Agreement shall be construed as if such
invalid, illegal or ineffective provisions had never been contained therein.
22.5 Acceptance of Surrender. No surrender to Landlord of this
Agreement or of the Leased Property or any part thereof, or of any interest
therein, shall be valid or effective unless agreed to and accepted in writing by
Landlord and no act by Landlord or any representative or agent of Landlord,
other than such a written acceptance by Landlord, shall constitute an acceptance
of any such surrender.
22.6 No Merger of Title. It is expressly acknowledged and agreed that
it is the intent of the parties that there shall be no merger of this Agreement
or of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly this Agreement or the
leasehold estate created hereby and the fee estate or ground landlord's interest
in the Leased Property.
22.7 Conveyance by Landlord. If Landlord or any successor owner of all
or any portion of the Leased Property shall convey all or any portion of the
Leased Property in accordance with the terms hereof other than as security for a
debt, and the grantee or transferee of such of the Leased Property shall
expressly assume all obligations of Landlord hereunder arising or accruing from
and after the date of such conveyance or transfer, Landlord or such successor
owner, as the case may be, shall thereupon be
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released from all future liabilities and obligations of Landlord under this
Agreement with respect to such of the Leased Property arising or accruing from
and after the date of such conveyance or other transfer and all such future
liabilities and obligations shall thereupon be binding upon the new owner;
provided, however, that, Landlord shall not be released from liability with
respect to the Retained Funds unless such successor shall have a Net Worth equal
to or greater than ten (10) times the unapplied balance of the Retained Funds.
If such successor shall not satisfy the aforesaid Net Worth requirement,
Landlord shall, in a guaranty in form and substance reasonably satisfactory to
Tenant, guaranty payment of the Retained Funds in accordance with this Agreement
and the Purchase Agreement.
22.8 Quiet Enjoyment. Tenant shall peaceably and quietly have, hold and
enjoy the Leased Property for the Term, free of hindrance or molestation by
Landlord or anyone claiming by, through or under Landlord, but subject to (a)
any Encumbrance permitted under Article 20 or otherwise permitted to be created
by Landlord hereunder provided that the holder of such Encumbrance has, to the
extent appropriate, executed a nondisturbance agreement pursuant to Section 20.2
or a subordination agreement in form and substance reasonably acceptable to
Tenant, (b) all Permitted Encumbrances, (c) liens as to obligations of Landlord
that are either not yet due or which are being contested in good faith and by
proper proceedings, provided the same do not materially interfere with Tenant's
ability to operate the Hotels and (d) liens that have been consented to in
writing by Tenant. Except as otherwise provided in this Agreement, no failure by
Landlord to comply with the foregoing covenant shall give Tenant any right to
cancel or terminate this Agreement or xxxxx, reduce or make a deduction from or
offset against the Rent or any other sum payable under this Agreement (except as
expressly provided in Section 14.2), or to fail to perform any other obligation
of Tenant hereunder.
22.9 Memorandum of Lease. Neither Landlord nor Tenant shall record this
Agreement. However, Landlord and Tenant shall promptly, upon the request of the
other, enter into a short form memorandum of this Agreement, in form suitable
for recording under the laws of the State in which reference to this Agreement,
and all options contained herein, shall be made. Tenant shall pay all costs and
expenses of recording such memorandum.
22.10 Notices.
(a) Any and all notices, demands, consents, approvals, offers,
elections and other communications required or permitted under this
Agreement shall be deemed adequately given if in writing and the same
shall be delivered either in hand, by telecopier with written
acknowledgment of receipt, or by mail or Federal Express or similar
expedited
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commercial carrier, addressed to the recipient of the notice, postpaid
and registered or certified with return receipt requested (if by mail),
or with all freight charges prepaid (if by Federal Express or similar
carrier).
(b) All notices required or permitted to be sent hereunder
shall be deemed to have been given for all purposes of this Agreement
upon the date of acknowledged receipt, in the case of a notice by
telecopier, and, in all other cases, upon the date of receipt or
refusal, except that whenever under this Agreement a notice is either
received on a day which is not a Business Day or is required to be
delivered on or before a specific day which is not a Business Day, the
day of receipt or required delivery shall automatically be extended to
the next Business Day.
(c) All such notices shall be addressed,
if to Landlord:
c/o Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
[Telecopier No. (000) 000-0000]
if to Tenant to:
c/o ShoLodge, Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Boult Xxxxxxxx Xxxxxxx & Xxxxx, PLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
[Telecopier No. (000) 000-0000]
(d) By notice given as herein provided, the parties hereto and
their respective successor and assigns shall have
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the right from time to time and at any time during the term of this
Agreement to change their respective addresses effective upon receipt
by the other parties of such notice and each shall have the right to
specify as its address any other address within the United States of
America.
22.11 Trade Area Restriction. Neither Tenant, ShoLodge nor any of their
Affiliated Persons shall own, build, franchise, manage or operate all suite
hotel of the same brand as the Hotels within the designated areas on Exhibit B,
at any time during the Term.
22.12 Construction. Anything contained in this Agreement to the
contrary notwithstanding, all claims against, and liabilities of, Tenant or
Landlord arising prior to any date of termination or expiration of this
Agreement with respect to the Leased Property shall survive such termination or
expiration. In no event shall Landlord be liable for any consequential damages
suffered by Tenant as the result of a breach of this Agreement by Landlord.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
to be charged. 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. Each term or provision of this Agreement to be performed
by Tenant shall be construed as an independent covenant and condition. Time is
of the essence with respect to the provisions of this Agreement. Except as
otherwise set forth in this Agreement, any obligations of Tenant (including
without limitation, any monetary, repair and indemnification obligations) and
Landlord shall survive the expiration or sooner termination of this Agreement.
22.13 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.
22.14 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
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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 Massachusetts; or (vii) any combination of the
foregoing. Notwithstanding the foregoing, the laws of the State shall apply to
the perfection and priority of liens upon and the disposition of any Property.
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 Massachusetts and to
service of process by registered mail, return receipt requested, or by any other
manner provided by law.
22.15 Right to Make Agreement. Each party warrants, with respect to
itself, that neither the execution of this Agreement, nor the consummation of
any transaction contemplated hereby, shall violate any provision of any law, or
any judgment, writ, injunction, order or decree of any court or governmental
authority having jurisdiction over it; nor result in or constitute a breach or
default under any indenture, contract, other commitment or restriction to which
it is a party or by which it is bound; nor require any consent, vote or approval
which has not been given or taken, or at the time of the transaction involved
shall not have been given or taken. Each party covenants that it has and will
continue to have throughout the term of this Agreement and any extensions
thereof, the full right to enter into this Agreement and perform its obligations
hereunder.
22.16 Nonrecourse. Nothing contained in this Agreement shall be
construed to impose any liabilities or obligations on Tenant's shareholders,
officers, directors, agents or employees (or any shareholders, officers,
directors, agents or employees of any of the foregoing) for the performance of
the obligations of Landlord or Tenant hereunder.
22.17 Attorneys' Fees. If any lawsuit or arbitration or other legal
proceeding arises in connection with the interpretation or enforcement of this
Agreement, the prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in connection therewith, in preparation therefor and on
appeal therefrom, which amounts shall be included in any judgment therein.
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22.18 Nonliability of Trustees. THE DECLARATION OF TRUST ESTABLISHING
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 LANDLORD SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, LANDLORD. ALL PERSONS
DEALING WITH LANDLORD, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF LANDLORD FOR
THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties have executed this Agreement as a
sealed instrument as of the date above first written.
LANDLORD:
HPT SUITE PROPERTIES TRUST
By: /s/ Xxxx X. Xxxxxx
Its President
TENANT:
SUITE TENANT, INC.
By: /s/ Xxxx Xxxxx
Its President
ShoLodge, Inc. hereby acknowledges and agrees to be bound by the
provisions of Section 22.11 of the foregoing Lease Agreement.
SHOLODGE, INC.
By: /s/ Xxxx Xxxxx
Its President
Date: November 19, 1997
