EXHIBIT 10.7
MASTER LEASE TERMINATION AGREEMENT
This Master Lease Termination Agreement (the "Agreement") is
made as of this ____ day of September, 2000 by and among Equity Inns
Partnership, L.P., a Tennessee limited partnership ("EIP"), Equity Inns, Inc., a
Tennessee corporation ("XXXX") and each of the parties set forth on Exhibit A-1
attached hereto and made a part hereof (collectively and together with EIP and
XXXX, the "ENN Entities") and Interstate Hotels, LLC, a Delaware limited
liability company ("IHC"), Interstate Hotels Corporation, a Maryland corporation
("Interstate"), Crossroads Future Company, L.L.C., a Delaware limited liability
company ("CFC"), Crossroads/Memphis Partnership, L.P., a Delaware limited
partnership ("Crossroads/Memphis"), Crossroads Hospitality Company, L.L.C., a
Delaware limited liability company ("CHC") and each of the parties set forth on
Exhibit A-2 attached hereto and made a part hereof (collectively and together
with IHC, Interstate, CFC, CHC, and Crossroads/Memphis, the "Crossroads
Entities").
WITNESSETH:
WHEREAS, Lessors and Lessees (each as hereinafter defined)
have entered into those certain Lease Agreements set forth on Exhibit B-1
attached hereto and made a part hereof (individually, as amended, a "Lease" and,
collectively, the "Leases") pursuant to which, and among other things, Lessors
leased to Lessees the hotels described on Exhibit B-2 attached hereto
(individually, a "Hotel" and, collectively, the "Hotels"); and
WHEREAS, Interstate, as successor in interest to Interstate
Hotels Company, a Pennsylvania corporation, Interstate Hotels, LLC, a Delaware
limited liability company, and Patriot American Hospitality, Inc. (collectively,
the "Guarantors") have executed and delivered, for the benefit of Lessors,
certain Guaranties of Lease for each of the Leases (individually, a "Guaranty"
and, collectively, the "Guaranties"); and
WHEREAS, EIP, XXXX, IHC (as successor in interest to
Interstate Hotels Corporation, a Pennsylvania corporation), the Crossroads
Entities, and CFC are parties to that certain Master Agreement dated as of
November 4, 1996, that certain First Amendment to Master Agreement dated as of
November 15, 1996, and that certain Second Amendment to Master Agreement dated
as of February 6, 1997, and that certain Consolidated Amendment to the Lease
Agreements and Master Agreement dated as of March 31, 1999 (as amended the
"Master Agreement"); and
WHEREAS, subject to the terms and conditions set forth in this
Agreement, (i) EIP, XXXX, IHC, Crossroads/Memphis and CFC desire to terminate
the Master Agreement, (ii) Lessors and Lessees desire to terminate or assign the
Leases, (iii) Lessors and Interstate desire to terminate the Guaranties, and
(iv) New Lessees, as hereinafter defined, and CHC desire to enter into a
management agreement pursuant to which and among other things CHC will manage
the Hotels other than the Excluded Hotels (as hereinafter defined).
NOW, THEREFORE, for and in consideration of the foregoing
recitals, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the
parties agree as follows:
Definitions.
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The following terms shall have the meanings set forth in
this Section 1.
(a) "Agreement" shall have the meaning ascribed in the introductory
paragraph.
(b) "Assignment" shall have the meaning ascribed in Section 7(a).
(c) "Assignment of Leases" shall have the meaning ascribed in
Section 7(a).
(d) "Assignment of Tenant Leases" shall have the meaning ascribed
to such term in Section 7(a).
(e) "Booking" shall mean a contract or reservation for the use of
guest rooms, banquet facilities, or meeting rooms at a Hotel.
(f) "Certificate" shall have the meaning ascribed in Section 7 (a).
(g) "Closing" shall have the meaning ascribed in Section 7.
(h) "Closing Date" shall mean January 1, 2001, or such other date
as the ENN Entities and the Crossroads Entities mutually agree.
(i) "Continuing Lease NOI" shall mean the net operating income
generated by the Hotel that is subject to a Continuing Lease, after payment of
all of such Hotel's operating expenses (excluding the payment of any management
fees) and the lease payment under the Lease for any calendar year as reflected
on the financial statement of such Hotel that is prepared by the applicable
Lessee in accordance with its financial and accounting practices employed as of
the date hereof.
(j) "Continuing Leases" shall mean the Leases for each of the Hotels
that the ENN Entities are unable to obtain the Necessary Consents.
(k) "Cutoff Time" shall mean 12:01 a.m. on the Closing Date.
(l) "Default" shall mean a breach, after the giving of required or
applicable notice or the expiration of any applicable cure periods, or both, of
any of the terms, conditions or covenants of this Agreement or the Memorandum of
Understanding.
(m) "Deposit Date" shall mean December 14, 2000.
(n) "Effective Date" shall mean July 21, 2000.
(o) "Escrowee" shall have the meaning ascribed in Section 7.
(p) "Equivalent Management Fees" shall mean the amount of the
aggregate base management fee and incentive management fee, if any, that would
have been payable under the Management Agreement for a Hotel that is subject to
a Continuing Lease for the same calendar year that the Continuing Lease NOI is
determined.
(q) "Excluded Hotels" shall mean each of the Hotels set forth on
Exhibit C attached hereto and made a part hereof.
(r) "Excluded Lease Agreement" shall have the meaning ascribed to
such term in Section 5(a).
(s) "Excluded Leases" shall have the meaning ascribed to such term
in Section 5.
(t) "Extended Stay Hotels" shall mean the Residence Inns and
Homewood Suites Hotels.
(u) "Franchise Agreements" shall mean each of the agreements described
on Exhibit D attached hereto and made a part hereof. "Franchise Agreement" shall
mean any of the agreements described on Exhibit D attached hereto and made a
part hereof.
(v) "Guaranty" and "Guaranties" shall have the meaning ascribed to
such terms in the Recitals.
(w) "Guarantors" shall have the meaning ascribed to such term in the
Recitals.
(x) "Guest Ledger Receivables" shall mean amounts, including, without
limitation, room charges, telephone charges, minibar charges, bar charges, and
restaurant charges, charged to a guest's room, accrued to the accounts of guests
occupying rooms in the Hotels as of the Cutoff Time.
(y) Hilton Hotels" means the Homewood Suites Phoenix, the Homewood
Suites Hartford/Windsor Locks, the Homewood Suites San Antonio and the Hampton
Inn Detroit/Northville.
(z) "Hotel" and "Hotels" shall have the meaning ascribed to such
terms in the Recitals.
(aa) "Hotel Contracts" shall mean all written contracts or agreements
which relate to the ownership, maintenance, construction, repair, and operation
of the Hotels other than the Franchise Agreements, the Bookings, and the Tenant
Leases, a list of which is attached hereto on Exhibit I-1.
(bb) "Impositions" shall have the meaning ascribed to such term in
the Leases.
(cc) "Lease" and "Leases" shall have the meaning ascribed to such
terms in the Recitals.
(dd) "Lease Amendment" shall have the meaning ascribed to such term
in Section 5.
(ee) "Lease Termination Agreement" shall have the meaning ascribed to
such term in Section 7(a).
(ff) "Lessees" shall mean all of the Crossroads Entities that are
lessees under the Leases and "Lessee" shall mean any of the Crossroads Entities
that is a lessee under any of the Leases.
(gg) "Lessors" shall mean all of the ENN Entities that are the lessors
under the Leases and "Lessor" shall mean any of the ENN Entities that are
lessors under any of the Leases.
(hh) "Management Agreement" shall mean the Management Agreement in the
form of Exhibit E.
(ii) "Master Agreement" shall have the meaning ascribed to such term
in the Recitals.
(jj) "Memorandum of Understanding" shall mean that certain Memorandum
of Understanding dated July 21, 2000 between CHC and EIP.
(kk) "Necessary Consents" shall mean all of the consents,
authorizations, and other approvals that are necessary for the ENN Entities to
terminate the Leases as set forth on Exhibit F.
(ll) "New Lessee" shall mean any entity designated by a Lessor as the
new lessee for a Hotel or as manager of an Excluded Hotel effective on or after
the Closing Date.
(mm) "Permits" shall mean all licenses (including, without limitation,
all liquor licenses) and permits (including, without limitation, certificates of
occupancy or their equivalents) granted by any governmental authority or agency
owned by any of the Crossroads Entities or used in or relating to the ownership,
occupancy, or operation of the Hotels or any part thereof.
(nn) "Proration Items" shall have the meaning ascribed to such term in
Section 8.
(oo) "Required Expenditures" shall have the meaning ascribed to such
term in Section 5.
(pp) "Room Revenues" shall mean the gross revenue from the rental of
guest rooms, whether to individuals, groups or transients, at a Hotel, excluding
the following: (i) the amount of all credits, rebates or refunds to customers,
guests or patron; and (ii) any fees collected for amenities including, but not
limited to, telephone, laundry, movies or concessions.
(qq) "Sarasota Hotel" shall mean the Hampton Inn, 0000 Xxxxx Xxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxx 00000.
(rr) "Settlement Date" shall mean January 5, 2001.
(ss) "Settlement Statement" shall have the meaning ascribed to such
term in Section 8.
(tt) "Significant Supplies" shall mean supplies in the following
categories as required by a franchisor: (i) irons/ironing boards, (ii) coffee
makers, (iii) kitchen supplies for guest rooms in any Extended Stay Hotels, and
(iv) other operational supplies.
(uu) "Tenant Leases" shall mean the interest of any of the Crossroads
Entities in and to all of the leases, subleases, and other occupancy agreements,
whether or not of record, which provide for the use or occupancy of any of the
Hotels or any portion thereof and which are in force as of the date hereof other
than the Leases and the Bookings, a list of which, on a Hotel by Hotel basis, is
attached hereto as Exhibit H-1.
(vv) "Utility Contracts" shall have the meaning ascribed to such term
in Section 8.
(ww) "2001 Lease Budgets" shall have the meaning ascribed to such term
in Section 3(e).
(xx) "2001 Management Budgets" shall have the meaning ascribed to such
term in Section 3(e).
2. Termination of Master Agreement. Subject to the terms and
conditions set forth herein, EIP, XXXX, IHC, Crossroads/Memphis, and CFC hereby
agree that (a) the Master Agreement shall terminate on the Closing Date and (b)
from and after the Closing Date none of EIP, XXXX, IHC, Crossroads/Memphis and
CFC shall have any further rights, liabilities or obligations under or pursuant
to the Master Agreement except to the extent such terms expressly, survive the
termination of the Master Agreement.
3. Termination of Leases and Guaranties. (a) Lessors and Lessees
hereby agree that as of the Effective Date through the Closing Date, Section
3.11 from each of the Leases shall be suspended as to all periods prior to and
after the Effective Date. Notwithstanding the foregoing, in the event that the
Closing does not occur on or before the Closing Date, the provisions of Section
3.11 of the Leases shall be reinstated retroactively in all of the Leases
effective as of the Effective Date as if they had not been suspended and there
shall not be deemed to have occurred any interruption, suspension or tolling of
any performance standards or time periods for measurement of any performance
standards and nothing herein shall be deemed to affect in any way EIP's rights
or remedies for any breach of the performance standards under Section 3.11 of
the Leases after December 31, 2000 with respect to the performance standards for
any time periods prior to or after December 31, 2000; provided, however, that if
the Closing does not occur on or before the Closing Date, solely as a result of
a Default by any of the ENN Parties, the provisions of Section 3.11 of the
Leases shall be reinstated in all of the Leases effective as of the Closing Date
and Lessor shall not have any rights or remedies for any breach of any of the
performance standards under Section 3.11 of the Leases for any time periods
prior to December 31, 2000.
(b) (i) Subject to the terms and conditions set forth herein
and except to the extent set forth in Section 3(b)(ii) and in Section 3(d),
Lessors and Lessees hereby agree that (A) all of the Leases, other than the
Continuing Leases, if any, shall terminate effective at 12:01 a.m. on the
Closing Date, except for those provisions that expressly survive the termination
of the Leases, and (B) from and after the Closing Date none of the Lessors nor
any of the Lessees shall have any further rights, liabilities, or obligations
under or pursuant to the Leases other than the Continuing Leases, if any.
(ii) (A) Except to the extent provided in Section 3(b)(ii)(C)
below, upon a Lessee's surrender of the Hotel on account of the termination of
the Lease pursuant to Section 3(b)(i), such Lessee and its parent companies,
partners, members, affiliates, subsidiaries, directors,
officers, successors and assigns, agents, employees and representatives shall be
unconditionally and fully released and discharged from any and all obligations,
claims, actions, liability, past, present and future, of whatever kind or
character, known or unknown, by reason of, growing out of, arising out of or
existing in connection with such Hotel, or by reason of the breach or alleged
breach by such Lessee, or conduct or activity resulting in the breach or alleged
breach by such Lessee, of any of the terms or provisions of such Lease.
(B) Except to the extent provided in Section 3(b)(ii)(C)
below, a Lessor under a Lease that is being terminated pursuant to Section
3(b)(i) and each of its parent companies, partners, members, affiliates,
subsidiaries, directors, officers, successors and assigns, agents, employees,
and representatives are hereby unconditionally and fully released and discharged
from any and all obligations, claims, actions, liability, past, present and
future, of whatever kind or character, known or unknown, by reason of, growing
out of, arising out of or existing in connection with the breach or alleged
breach by such Lessor, or conduct or activity resulting in the breach or alleged
breach by such Lessor, of any of the terms or provisions of such Lease.
(C) Notwithstanding anything to the contrary contained in this
Agreement, each Lessee and each Lessor under a Lease that is being terminated
pursuant to Section 3(b)(i) shall remain liable (1) for all rent and
indemnification obligations and liabilities under such Lease which arise or
accrue prior to the Closing Date and (2) with respect to the terms of such Lease
which survive the termination of the Lease.
(c) Lessors hereby agree that each of the Guaranties shall
terminate on the Closing Date in accordance with Exhibit J attached hereto and
made a part hereof.
(d) Notwithstanding anything to the contrary in this Section
3, if requested by XXXX in writing at least ten (10) business days prior to the
Closing Date the applicable Lessees shall assign all of their respective right,
title, and interest to and in the Leases (other than the Excluded Leases) to a
New Lessee effective as of the Closing Date in lieu of terminating such Lease.
(e) Pursuant to Section 3.6 of the Leases, Lessees are
required to submit to Lessors year 2001 operating budgets for the Hotels (the
"2001 Lease Budgets") on or before November 1, 2000. In addition, pursuant to
Section 8.1 of the Management Agreement, which becomes effective January 1,
2001, the Manager (as defined in the Management Agreement) is required to submit
to the ENN Entities and/or the New Lessees annual business plans for year 2001
(the "2001 Management Budgets") on or before November 1, 2000. Lessors hereby
waive the Lessees' obligation to submit the 2001 Lease Budgets on or before
November 1, 2000; provided, however, Lessees will submit, on or before November
1, 2000, a 2001 Management Budget for each of the Hotels (other than the
Excluded Hotels). Lessees for each of the Excluded Hotels will cooperate, and
will cause the Lessee's staff at each of the Excluded Hotels to cooperate, with
the ENN Entities in connection with the ENN Entities preparation of year 2001
operating budgets for each of the Excluded Hotels. If the Closing does not occur
for any reason, or one or more of the Leases is not terminated or assigned as of
the Closing Date (pursuant to the terms of this Agreement), the applicable
Lessees will submit a 2001 Lease Budget for the Hotels for which the Lease is
not being terminated or assigned to the applicable Lessors on or before January
31, 2001.
4. Management Agreement. Effective as of the Closing Date, the New
Lessees shall enter into the Management Agreement for each of the Hotels (other
than the Excluded Hotels) and the hotel known as the Boise, Idaho Residence
Inn by Marriott.
5. Covenants. (a)(i) The ENN Entities covenant and agree to use their
commercially reasonable efforts to obtain all of the Necessary Consents prior to
the Closing Date. On October 15, 2000, XXXX shall provide to Interstate a status
report setting forth (A) which Necessary Consents have been obtained, (B) which
Necessary Consents have not yet been obtained, and (C) an estimated date for
obtaining such Necessary Consents for those that have not thus been obtained.
For the purposes of this Section 5(a)(i), the phrase "commercially reasonable
efforts" shall include, without limitation, the payment of all
change-of-ownership fees required by the franchisors under the Franchise
Agreements and all "PIPs" resulting from such change-of- ownership that are
reasonable as determined by the ENN Entities. The Crossroads Entities hereby
agree to cooperate in all reasonable respects with the ENN Entities to obtain
such Necessary Consents which cooperation shall include, without limitation, the
execution of documents reasonably requested from franchisors (to the extent such
documents are acceptable to the Crossroads Entities in their reasonable
discretion) and, if necessary, documentation evidencing CHC's agreement to
subordinate its lien rights, if any, under the Management Agreement to any
mortgage encumbering a Hotel (provided, however, in no event shall CHC or any of
the Crossroads Entities be obligated to subordinate their rights to receive any
fees, reimbursements, or indemnification payments under the Management Agreement
arising prior to termination (but (y) if the Management Agreement is terminated
by the lender or such purchaser, CHC or any of the Crossroads Entities shall not
look to the lender for payment of such fees, reimbursements or indemnification
payments and CHC and the Crossroads Entities' right to receive such fees,
reimbursements or indemnification payments shall be subordinate to the lender's
rights and (z) if the Management Agreement is not terminated by the lender or
such purchaser, then such fees, reimbursements or indemnification payments shall
be payable by the lender or such purchaser).
(ii) If the ENN Entities are not able to obtain all of the
Necessary Consents, the ENN Entities and the Crossroads Entities hereby agree to
cause the Lessors or a subsidiary of XXXX, as determined by XXXX, and Lessees to
enter into, at Closing: (A) an amendment to the Lease for each of the Hotels for
which the Necessary Consents have not been obtained (the "Lease Amendment")
which shall provide, among other things: (1) that the Lessee's obligations under
such Continuing Lease shall be limited to those obligations that CHC is
obligated to perform under the Management Agreement with respect to such Hotel,
(2) for the same economic benefits to such Lessee that CHC is receiving under
the Management Agreement, (3) that Sections 3.10 and 3.11 of each Continuing
Lease are deleted effective as of the Effective Date, (4) the performance
standards contained in the Management Agreement shall be applicable to the
Continuing Lease, (5) the Continuing Lease shall terminate on the date which is
the earlier of (A) the expiration date of the term of such Lease on the date
hereof, and (B) the date on which the ENN Entities obtain all of the Necessary
Consents for the termination of such Continuing Lease pursuant to Section 3(b)
or the assignment of such Continuing Lease pursuant to Section 3(d), (6) for the
sale of the Hotel which is subject to the Continuing Lease to be governed by and
included in the calculations set forth in the Management Agreement relating to
restrictions on the sale of the Hotels and the termination of the Management
Agreement with respect to such Hotel and (7) that (i) if the amount determined
by subtracting the Equivalent Management Fees from the Continuing Lease NOI is a
negative number, then Lessor, or the applicable subsidiary of XXXX, as
applicable, shall pay to such Lessee an amount equal to such difference and (ii)
if the amount determined by subtracting the Equivalent Management Fees from the
Continuing Lease NOI is positive, then Lessee shall pay to such Lessor or the
subsidiary of XXXX, as applicable, the
amount equal to such difference. Notwithstanding the foregoing, Lessees hereby
agree to cooperate in structuring any such Lease Amendments with XXXX in a
manner that will satisfy federal income tax provisions that are applicable to
XXXX; provided, however, in no event shall any Lessee be required to structure
any Lease Amendment in a manner that would reduce th economic benefits below the
amount that such Lessee or CHC would have received if the Management Agreement
was entered into for such Hotel in lieu of such Lease Amendment. In no event
shall this Agreement be terminated or the Closing delayed as a result of the ENN
Entities inability to obtain the Necessary Consents. The Lease Amendment for
each Continuing Lease shall be in form and substance reasonably acceptable to
the ENN Entities and the Crossroads Entities.
(iii) If the ENN Entities request that any of the leases
governing the Excluded Hotels (the "Excluded Leases") continue from and after
the Closing Date, the Crossroads Entities agree that such leases shall stay in
place provided that the ENN Entities (or a subsidiary of XXXX) execute and
deliver to and for the benefit of the applicable Lessee an agreement (the
"Excluded Lease Agreement") that provides, among other things: (1) the
applicable Lessee and the applicable Lessor or XXXX subsidiary to jointly engage
a third party manager to manage the Excluded Hotels, (2) for the applicable
Lessor or XXXX subsidiary to assume all financial obligations and liabilities
and all operating risks under such Excluded Leases, (3) for the applicable
Lessor or XXXX subsidiary to remit all rent due under the Excluded Lease to the
Lessors, (4) for any profits earned from the Excluded Hotels to be paid to the
applicable Lessor, (5) for the applicable Lessee to continue to maintain all
franchise licenses for the Excluded Hotels, (6) for the applicable Lessee to
refrain from intentionally taking any action, or intentionally failing to take
any action, which would result in the loss of such franchise licenses, (7) for
the ENN Entities to indemnify, defend and hold the Crossroads Entities harmless
and free from all claims and losses for damages, or injuries to any person or
any property that is in any way related to the Excluded Leases or the franchise
agreements for the Excluded Hotels, relating to periods on or after the Closing
Date and (8) for the ENN Entities and their agents, servants, officers,
directors, managers, members, partners, employers, employees, shareholders,
attorneys, successors and
assigns to release and forever discharge the Crossroads Entities and their
agents, servants, officers, directors, managers, members, partners, employers,
employees, shareholders, attorneys, successors and assigns from all liabilities
from any and all claims, demands, damages, actions, causes of action or suits of
any kind or nature, which arise on or after the Closing Date and are based
directly or indirectly upon facts, events, transactions or occurrences related
to the Excluded Leases and Excluded Hotels subject to the Excluded Lease
Agreement. The Excluded Lease Agreement for each Excluded Lease shall be in form
and substance reasonably acceptable to the ENN Entities and the Crossroads
Entities.
(b) The Crossroads Entities hereby agree that, unless
otherwise agreed in writing by the Crossroads Entities and the ENN Entities,
each Lessee will spend, with respect to each Hotel other than the Hilton Hotels,
(i) at least ninety-five (95%) of the entire year 2000 maintenance and repair
budget and (ii) nine-five percent (95%) of the entire year 2000 marketing budget
as set forth in the year 2000 operating budget for each Hotel (the "Required
Expenditures"). In the event that the applicable Lessee has failed to make the
full amount of the Required Expenditures prior to the Closing Date with respect
to any Hotel other than the Hilton Hotels, the applicable Lessee shall pay to or
as directed by the ENN Entities at the Closing an amount equal to the difference
between the Required Expenditures for the Hotel and the actual year 2000
maintenance and repair expenses spent on the Hotel and the actual year 2000
marketing expenses spent on the Hotel, as applicable. For purposes of
determining the actual amounts expended in connection with year 2000 maintenance
and repairs and marketing expenses for any Hotel, the ENN Entities and the
Crossroads Entities agree as follows: (y) the accounting shall be made on an
accrual basis in accordance with generally accepted accounting principles
consistently applied; and (z) centralized marketing program expenses shall be
allocated to each Hotel's marketing expense budget on a room-count basis to the
extent such centralized marketing programs provide a direct benefit to such
Hotel or to the extent such centralized marketing programs have previously been
allocated to such Hotel.
(c) The Crossroads Entities will use their commercially
reasonable efforts to assist the ENN Entities and the New Lessees to obtain (i)
the Necessary Consents, and (ii) liquor licenses for the Hotels to the extent a
new liquor license is required or the extent an assignment of liquor license is
necessary.
6. Representations and Warranties.
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(a) As an inducement to the Crossroads Entities to enter into
this Agreement and to consummate the transactions contemplated herein, the ENN
Entities hereby jointly and severally represent and warrant to the Crossroads
Entities the following:
(i) Each of the ENN Entities is duly organized or formed, validly
existing and in good standing under the laws of the State of its formation.
(ii) The execution and delivery of this Agreement and the performance
of the ENN Entities' hereunder have been duly authorized by all necessary action
on the part of each of the ENN Entities, and this Agreement constitutes the
legal, valid and binding obligation of each of the ENN Entities, subject to
equitable principles and principles governing creditors' rights generally.
(iii) The execution and delivery of this Agreement by the ENN Entities
and the consummation by the ENN Entities of the transactions contemplated hereby
will not, (A) violate any judgment, order, injunction, decree, regulation or
ruling of any court or governmental entity or (B) subject to the receipt of the
Necessary Consents and the terms hereof, conflict with, result in a breach of,
or constitute a default under the organic documents of the ENN Entities, any
note or other evidence of indebtedness, any mortgage, deed of trust or
indenture, or any lease or other material agreement or instrument to which any
of the ENN Entities is a party or by which any of the ENN Entities may be bound.
(iv) There are no legal actions, suits or similar proceedings pending
and served, or, to the ENN Entities knowledge, threatened against any of the ENN
Entities or the Hotels which if adversely determined would adversely affect the
ENN Entities' ability to consummate the transactions contemplated hereby.
(v) Other than the Necessary Consents, no consent, waiver, approval or
authorization is required from any person or entity (that has not already been
obtained) in connection with the execution and delivery of this Agreement by the
ENN Entities or the performance by the ENN Entities of the transactions
contemplated hereby.
(vi) None of the ENN Entities have (A) commenced a voluntary case, or
had entered against it a petition, for relief under any federal bankruptcy act
or any similar petition, order or decree under any federal or state law or
statute relative to bankruptcy, insolvency or other relief for debtors, (B)
caused, suffered or consented to the appointment of a receiver, trustee,
administrator, conservator, liquidator or similar official in any federal, state
or foreign judicial or non-judicial proceedings, to hold, administer and/or
liquidate all or substantially all of its property, or (C) made an assignment
for the benefit of creditors as an alternative to commencing a petition of
bankruptcy.
(a) As an inducement to the ENN Entities to enter into this Agreement
and to consummate the transactions contemplated herein, the Crossroads Entities
hereby jointly and severally represent and warrant to the ENN Entities the
following:
(i) Each of the Crossroads Entities is duly organized or formed,
validly existing and in good standing under the laws of the State of its
formation.
(ii) The execution and delivery of this Agreement and the performance
of the Crossroads Entities' hereunder have been duly authorized by all necessary
action on the part of each of the Crossroads Entities, and this Agreement
constitutes the legal, valid and binding obligation of each of the Crossroads
Entities, subject to equitable principles and principles governing creditors'
rights generally.
(iii) The execution and delivery of this Agreement by the Crossroad
Entities and the consummation by the Crossroads Entities of the transactions
contemplated hereby will not (A) violate any judgment, order, injunction,
decree, regulation or ruling of any court or governmental entity or (B) conflict
with, result in a breach of, or constitute a default under the organic documents
of the Crossroads Entities, any note or other evidence of indebtedness, any
mortgage, deed of trust or indenture, or any lease or other material agreement
or instrument to which any of the Crossroads Entities is a party or by which any
of the Crossroads Entities may be bound.
(iv) There are no legal actions, suits or similar proceedings pending
and served, or, to the Crossroads Entities knowledge, threatened against any of
the Crossroads Entities or the Hotels which if adversely determined would
adversely affect the Crossroads Entities ability to consummate the transactions
contemplated hereby.
(v) Other than the Necessary Consents, no consent, waiver, approval or
authorization is required from any person or entity (that has not already been
obtained) in connection with the execution and delivery of this Agreement by the
Crossroads Entities or the performance by the Crossroads Entities of the
transactions contemplated hereby.
(vi) None of the Crossroads Entities have (A) commenced a voluntary
case, or had entered against it a petition, for relief under any federal
bankruptcy act or any similar petition, order or decree under any federal or
state law or statute relative to bankruptcy, insolvency or other relief for
debtors, (B) caused, suffered or consented to the appointment of a receiver,
trustee, administrator, conservator, liquidator or similar official in any
federal, state or foreign judicial or non-judicial proceedings, to hold,
administer and/or liquidate all or substantially all of its property, or (C)
made an assignment for the benefit of creditors as an alternative to commencing
a petition of bankruptcy.
7. Closing. The closing hereunder ("Closing") shall be deemed
effective as of the Closing Date. The delivery of all items to be made at the
Closing under the terms of this Agreement, other than the Settlement Statement,
shall be made into an escrow with the Pittsburgh, Pennsylvania office of Chicago
Title Insurance Company (the "Escrowee") at 10:00 a.m. eastern time on the
Deposit Date, at the Pittsburgh, Pennsylvania offices of Xxxxx, Day, Xxxxxx &
Xxxxx.
(a) At or before the Deposit Date, the Crossroads Entities shall
deliver to the Escrowee for delivery to the ENN Entities on the Settlement Date,
the following items:
(i) Four (4) duly executed original counterparts of a Certificate of
Termination, Assignment or Continuation of Leases which sets forth the status of
each Lease in the form attached hereto and made a part hereof as Exhibit G (the
"Certificate");
(ii) Either four (4) duly executed counterparts of a Memorandum of
Lease Termination for each of the Hotels (other than the Hotels that will be
subject to a Continuing Lease, if any) in the form attached hereto and made a
part hereof as Exhibit G-1 (the "Memorandum of Lease Termination") or such other
form as may be required by the jurisdiction in which such Hotel is located to
record such Memorandum of Lease Termination in the real property records and to
otherwise evidence such Lessee's release of its rights as the lessee of such
Hotel or, if XXXX has elected to have any Leases assigned in lieu of termination
pursuant to Section 3(d), four (4) duly executed original counterparts of an
Assignment and Assumption of Leases for such Leases in the form attached hereto
and made a part hereof as Exhibit G-2 (the "Assignment of Leases");
(iii) Four (4) duly executed original counterparts of an Assignment
and Assumption of Tenant Leases for each of the Hotels in the form attached
hereto as Exhibit H-2 (the "Assignment of Tenant Leases");
(iv) Four (4) duly executed original counterparts of an Assignment and
Assumption of Hotel Contracts, Bookings, and Permits for each of the Hotels in
the form attached hereto as Exhibit I-2 (the "Assignment");
(v) Notices to each tenant under the Tenant Leases signed by the
Crossroads Entities, that shall disclose that the Lease with respect to the
Hotel which is subject to the Tenant Lease has been terminated and that, after
the Closing, all rents should be paid to the ENN Entities or the ENN Entities'
designee;
(vi) If and to the extent required by the terms of this Agreement,
four (4) duly executed original counterparts of the Lease Amendment for each
Continuing Lease;
(vii) If and to the extent required by the terms of this Agreement,
four (4) duly executed original counterparts of the Excluded Lease Agreement for
each Excluded Lease; and
(viii) All records, excluding employee and payroll records, but
including, without limitation, written, magnetic and electronic, of the
applicable Crossroads Entity that relate to its operations of the Hotel for all
periods prior to the Closing Date; and
(ix) A certificate of the Crossroads Entities that the representations
and warranties contained in this Agreement are true and correct in all material
respects as of the Closing Date.
(x) Such other documents as may be reasonably be agreed upon by the
Crossroads Entities and the ENN Entities to consummate the transactions
contemplated by this Agreement.
(b) At or before the Deposit Date, the ENN Entities shall deliver to
the Escrowee for delivery to the Crossroads Entities on the Settlement Date, the
following items:
(i) Four (4) duly executed original counterparts of the Certificate;
(ii) Either four (4) duly executed original counterparts of the
Memorandum of Lease Termination for each of the Hotels (other than the Hotels
that will be subject to a Continuing Lease, if any) or, if XXXX has elected to
have any Leases assigned in lieu of termination pursuant to Section 3(d), four
(4) duly executed original counterparts of an Assignment of Leases for such
Leases;
(iii) Four (4) duly executed original Termination of Guaranties, in
the form attached hereto as Exhibit J;
(iv) Four (4) duly executed original counterparts the Assignment of
Tenant Leases for each Hotel;
(v) Four (4) duly executed original counterparts of the Assignment
for each Hotel;
(vi) If and to the extent required by the terms of this Agreement,
four (4) duly executed original counterparts of the Lease Amendment for each of
the Continuing Leases;
(vii) If and to the extent required by the terms of this Agreement,
four (4) duly executed original counterparts of the Excluded Lease Agreement for
each Excluded Lease;
(viii) Either proof of receipt of the Necessary Consents for all of
the Hotels or, evidence of non-receipt of the Necessary Consents for the
Continuing Leases, both of which shall be in form and substance reasonably
satisfactory to the Crossroads Entities;
(ix) Such other documents as may be reasonably be agreed upon by the
Crossroads Entities and the ENN Entities to consummate the transactions
contemplated by this Agreement; and
(x) A certificate of the ENN Entities that the representations and
warranties contained in this Agreement are true and correct in all material
respects as of the Closing Date.
(c) At or before the Settlement Date, (i) the Crossroads Entities
shall deliver to the Escrowee for delivery to the ENN Entities, four (4) duly
executed counterparts of the Settlement Statement, and (ii) the ENN Entities
shall deliver to the Escrowee for delivery to the Crossroads Entities, four (4)
duly executed counterparts of the Settlement Statement.
(d) Each of the Crossroads Entities and the ENN Entities hereby agree
to deliver at or prior to the Settlement Date to the other party, to the extent
required by Section 8 of this Agreement, the sums required pursuant to Section
8.
(e) The Crossroads Entities and the ENN Entities hereby agree to
execute and deliver at or prior to the Deposit Date, closing escrow instructions
in form and substance acceptable to the ENN Entity and the Crossroads Entities
which shall be auxiliary to this Agreement and this Agreement shall not be
merged into, nor in any manner superseded thereby. Such escrow instructions
shall provide for the deposit of and subsequent disbursement of the documents
described in this Section 8.
8. Closing Prorations. (a) The Crossroads Entities and the ENN
Entities agree to adjust, as of the Cutoff Time, in accordance with the
provisions of this Section 8, the following (collectively, the "Proration
Items"): Impositions, utility bills, rents and other payments under the Tenant
Leases, franchise fees under the Franchise Agreements, amounts due under the
Hotel Contracts, Guest Ledger Receivables, and Bookings. The Crossroads Entities
will be charged and credited for the amounts of all of the Proration Items
relating to the period up to and including the Cutoff Time, and the ENN Entities
will be charged and credited for all of the Proration Items relating to the
period after the Cutoff Time. Preliminary estimated Closing prorations shall be
set
forth on a preliminary closing statement to be prepared by the Crossroads
Entities and submitted to the ENN Entities for the ENN Entities' approval prior
to the Settlement Date (the "Settlement Statement"). The Settlement Statement,
once agreed upon, shall be signed by the Crossroads Entities and the ENN
Entities and delivered for purposes of making the preliminary proration
adjustment on the Settlement Date which shall be effective as of the Closing
subject to the final cash settlement provided for below. The preliminary
proration shall be paid on the Settlement Date by the ENN Entities to the
Crossroads Entities (if the preliminary prorations result in a net credit to the
Crossroads Entities) or by the Crossroads Entities to the ENN Entities (if the
preliminary prorations result in a net credit to the ENN Entities). If the
actual amounts of the Proration Items are not known as of the Cutoff Time, the
prorations will be made on the Settlement Date on the basis of the best evidence
then available; thereafter, when actual amounts are determined (not to exceed
120 days after the Settlement Date), re-prorations will be made on the basis of
the actual amounts, and a final cash settlement will be made between the
Crossroads Entities and the ENN Entities. No prorations will be made in relation
to insurance premiums, and the Crossroads Entities' insurance policies will not
be assigned to the ENN Entities for any of the Excluded Hotels. All calculations
shall be made on an accrual basis and in substantial accordance with the Uniform
System of Accounts for Hotels, "Eighth Revised Edition", 1986, as revised and
adopted by the Hotel Association of New York City, Inc. from time to time. For a
period of 60 days following the date of the final re-proration, the parties
shall have a right to inspect and audit the other parties' books and records
relating to prorations and any re-prorations adjustments necessary upon five (5)
days' prior written notice and provided that such inspection or audit is
conducted during normal business hours and at the offices of the party who is
subject to such inspection or audit. The provisions of this Section 8 will
survive the Closing.
(b)(i) Guest Ledger Receivables shall be prorated between the
ENN Entities and the Crossroads Entities such that the Crossroads Entities shall
receive a credit for all Guest Ledger Receivables prior to the Cutoff Time and
the ENN Entities shall receive all Guest Ledger Receivables after the Cutoff
Time. All credits for Guest Ledger Receivables shall be calculated after first
deducting applicable discounts and credit card and travel agent commissions and
after writing down to zero all guest ledger charges (A) that are disputed by the
guest, (B) that are for personnel of the Crossroads Entities or any of their
respective parents, subsidiaries, or affiliated entities, (C) that are
complimentary, or (D) that are in-house charges. If any Guest Ledger Receivable
for the period after the Cutoff Time is erroneously remitted to the Crossroads
Entities, the Crossroads Entities shall promptly forward the same to the ENN
Entities. If any Guest Ledger Receivables for the period prior to the Cutoff
Time are written down to zero is in fact collected by the ENN Entities, then the
ENN Entities shall promptly remit the same, less any cost of collection, to the
Crossroads Entities.
(ii) The Crossroads Entities shall receive one-half of the
Room Revenues and one-half of the applicable occupancy taxes for the night
during which the Cutoff Time occurs and the ENN Entities shall receive one-half
of the Room Revenues and one-half of the applicable occupancy taxes for the
night during which the Cutoff Time occurs.
(c) All charges shown on the Hotels' city ledger as of the
Cutoff Time and collected subsequent to the Cutoff Time shall be applied first
as directed by the payor, then, for the benefit of the Crossroads Entities, to
charges incurred prior to the Cutoff Time, in the order in which they were
incurred, and then, for the benefit of the ENN Entities, to charges incurred
after the Cutoff Time.
(d) The Crossroads Entities shall be responsible for all
payments accruing under the Hotel Contracts prior to the Cutoff Time and the ENN
Entities shall be responsible for all payments accruing under the Hotel
Contracts after the Cutoff Time. Any amounts not known as of the Closing shall
be estimated on the Settlement Statement and shall be reprorated in accordance
with this Section 8.
(e) The ENN Entities shall receive a credit on the Settlement
Statement for the prorated amounts (as of the Cutoff Time) of all rents and
other payments under the Tenant Leases previously paid to or collected by the
Crossroads Entities and attributable to any period following the Cutoff Time.
After the Cutoff Time, the Crossroad Entities will cause to be paid or turned
over to the ENN Entities all rents and other payments under the Tenant Leases,
if any, received by the Crossroads Entities and attributable to the period after
the Cutoff Time. Delinquent rents will not be prorated. The ENN Entities agree
to use good faith collection procedures with respect to the collection of any
delinquent rents but the ENN Entities shall have no liability for the failure to
collect any such amounts and will not be required to conduct lock-outs or take
any other legal action to enforce collection of any such amounts owed to the
Crossroads Entities from any tenant of the Hotels. All sums collected by the ENN
Entities from and after the Closing Date from each tenant will be applied first
as directed by payor, then to current amounts owed by such tenant to the ENN
Entities, and then, to prior delinquencies owed by such tenant to the Crossroads
Entities. Any sums due to the Crossroads Entities will be promptly remitted to
the Crossroads Entities.
(f) The ENN Entities shall be entitled to a credit for all
security and other deposits actually held by the Crossroads Entities as of the
Cutoff Time with respect to the Tenant Leases.
(g) The Crossroads Entities shall be responsible for the
payment of all Impositions (other than Impositions that are the ENN Entities'
responsibility under the Leases), if any, payable or accrued with respect to all
of the Hotels until the Cutoff Time and the Lessors and any applicable New
Lessee shall be jointly and severally responsible for the payment of all
Impositions with respect to all of the Hotels after the Cutoff Time. The
Crossroads Entities shall be entitled to receive any rebates or refunds with
respect to any such Impositions paid by the Crossroads Entities .
(h) Final readings and final xxxxxxxx for utilities (including
telephone) will be made if possible as of the Cutoff Time, in which event no
proration will be made at Closing with respect to utility bills. The Crossroads
Entities will be entitled to all deposits presently in effect with the utility
providers if such deposits are in the name of any of the Crossroads Entities,
and the New Lessees will be obligated to make their own arrangements for
deposits with the utility providers. To the extent that bills are not available,
the cost of such utilities shall be apportioned between the parties on the basis
of the latest actual (not estimated) xxxx for such service and adjusted as
necessary post-closing when the xxxx becomes available as contemplated in this
Section 8.
(i) The Crossroads Entities shall sell and the ENN Entities
shall purchase from the Crossroads Entities all xxxxx cash funds (excluding
purchasing receipts and paid outs) and cash in house banks for all of the Hotels
at 100% of face value at the Cutoff Time.
(j) The Crossroads Entities shall be responsible for the
payment of all franchise and other fees, if any, under the Franchise Agreements
with respect to the period up to the Cutoff Time and the ENN Entities shall be
responsible for the payment of all franchise and other fees, if any, under the
Franchise Agreements with respect to the period after the Cutoff Time.
(k) The Crossroads Entities shall be responsible for the
payment of all fees under the Permits with respect to the period up to the
Cutoff Time and the ENN Entities shall be responsible for the payment of all
fees under the Permits with respect to the period after the Cutoff Time.
(l) The ENN Entities shall receive a credit for advance
payments, if any, under Bookings to the extent Bookings relate to a period after
the Cutoff Time.
(m) The ENN Entities shall receive a credit for any vested
vacation accruals as of the Cutoff Date for employees of the Hotels who are
subsequently hired by any of the ENN Entities or any of their management
companies.
(n) The Crossroads Entities shall be responsible for the
payment of severance benefits, if any, to any employees of the Hotels who are
not hired by any of the ENN Entities or any of their management companies
provided ENN gives the Crossroads Entities written notice of each employee of
any Hotel who will not be hired at least sixty days prior to the Closing Date.
Closing Inventories.
-------------------
On the Closing Date, the Crossroads Entities shall cause
each Hotel to have on hand (a) linen inventories at the level and of the quality
described on Exhibit K-1 attached hereto and made a part hereof and (b)
inventories of the Significant Supplies at the levels and of the quality
described on Exhibit K-2.
Defaults.
--------
In the event that any of the ENN Entities default in their
obligations under this Agreement, the Crossroads Entities shall have any and all
rights at law and in equity. In the event that any of the Crossroads Entities
default in their obligations under this Agreement, the ENN Entities shall have
any and all rights at law and in equity.
11. Sarasota Hotel. The Lessor and Lessee for the Sarasota Hotel
acknowledge that, to the extent that a default by either party under the
Franchise Agreement for the Sarasota Hotel dated November 5, 1996, and as
amended, by and between Crossroads/Memphis Financing Company, L.L.C. and Promus
Hotels, Inc., may or may not exist, the Lessor of the Sarasota Hotel and the
Lessee of the Sarasota Hotel have agreed to waive any rights or remedies either
party may have under the Lease for the Sarasota Hotel; provided, that, in
the event that the Closing does not occur on or before the Closing Date as a
result of the failure to obtain the Necessary Consents, then after the Closing
Date the ENN Entities and the Crossroads Entities shall be free to exercise all
of their respective rights and remedies with respect to any default under such
Franchise Agreement for the Sarasota Hotel as such rights and remedies exist as
of the date of the Memorandum of Understanding or which arise thereafter, as if
the foregoing waiver had not occurred.
12. Final Exhibits. The parties acknowledge that Exhibit H-1 and
Exhibit I-1 will take significant time and effort to complete and agree that
such Exhibits shall be finalized, agreed upon by the parties, and attached
hereto on or before September 15, 2000.
13. Communications to Employees and Third Parties. The ENN Entities
and the Crossroads Entities shall agree upon a plan for communicating the
disposition schedule for the Hotels.
14. Miscellaneous.
(a) Subject to applicable law, this Agreement may be amended,
modified, or supplemented only by a written agreement signed by the ENN Entities
and the Crossroads Entities.
(a) All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the following address:
If to the ENN Entities: c/o Equity Inns Partnership, LP
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxxxxx XxXxxxx, Xx.
Facsimile: 901/754-2374
With Copies to: Hunton & Xxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000)000-0000
If to the Crossroads Entities: c/o Crossroads Hospitality Company, L.L.C.
Xxxxxx Plaza Ten
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: President
Facsimile: 412/937-8055
With Copies to: x/x Xxxxxxxxxx Xxxxxxxxxxx Xxxxxxx, X.X.X.
Xxxxxx Plaza Ten
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: 412/937-3265
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Paris
Facsimile: 216/579-0212
Any such notices may be sent by (i) certified mail, return receipt requested,
postage prepaid in the U.S. mail, (ii) a nationally recognized overnight
courier, or (iii) facsimile transmission. All notices shall be deemed delivered
upon receipt or refusal to accept delivery. The above addresses and facsimile
numbers may be changed by written notice to the other party; provided that no
notice of a change of address or facsimile number shall be effective until
actual receipt of such notice. Copies of notices are for informational purposes
only, and a failure to give or receive copies of any notice shall not be deemed
a failure to give notice.
(b) No party shall have the right to assign this Agreement, without
the prior written consent of the other parties. This Agreement will be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns, and no other party will be conferred any rights by virtue of
this Agreement or be entitled to enforce any of the provisions hereof.
(c) Nothing set forth in this Agreement shall be construed to create a
joint venture between the ENN Entities and the Crossroads Entities.
(d) This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania, without regard to any
otherwise applicable principles of conflicts of laws. Any action arising out of
this Agreement may be brought in the state or federal courts of Pennsylvania or
Tennessee and every party hereby consents to the jurisdiction of the above
courts in any such action and to the laying of venue in the Commonwealth of
Pennsylvania and the State of Tennessee. Any process in any such action shall be
duly served if mailed by registered mail, postage prepaid, to the parties at
their respective address described in Section 11(b) of this Agreement.
(e) Each party to this Agreement hereby expressly waives any right to
trial by jury of any claim, demand, action or cause of action (each, an
"Action") (i) arising out of this Agreement, including any present or future
amendment thereof or (ii) in any way connected with or related or incidental to
the dealings of the parties or any of them with respect to this Agreement (as
hereafter amended) or any other instrument, document or agreement executed or
delivered in connection herewith, or the transactions related hereto or thereto,
in each case whether such Action is now existing or hereafter arising, and
whether sounding in contract or tort or otherwise and regardless of which party
asserts such Action; and each party hereby agrees and consents that any such
Action shall be decided by court trial without a jury, and that any party to
this Agreement may file an original counterpart or a copy of this Section 11(f)
with any court as
written evidence of the consent of the parties to the waiver of any right they
might otherwise have to trial by jury.
(f) Time is of the essence of this Agreement.
(g) No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver, nor shall a waiver
in any instance constitute a waiver in any subsequent instance. No waiver shall
be binding unless executed in writing by the party making the waiver.
(h) This Agreement and any other document to be furnished pursuant to
the provisions hereof embody the entire agreement and understanding of the
parties hereto as to the subject matter contained herein. There are no
restrictions, promises, representations, warranties, covenants, or undertakings
other than those expressly set forth or referred to in such documents. This
Agreement and such documents supersede all prior agreements and understandings
among the parties with respect to the subject matter hereof.
(i) Any term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement, or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement.
(j) If any action is brought by any party to this Agreement to enforce
or interpret its terms or provisions, the prevailing party will be entitled to
reasonable attorney fees and costs incurred in connection with such action prior
to and at trial and on any appeal therefrom.
(k) Each party to this Agreement will be responsible for, and will
pay, all of its own fees and expenses, including those of its counsel and
accountants, incurred in the negotiation, preparation, and consummation of this
Agreement and the transaction contemplated hereunder.
(l) This Agreement may be executed in two or more fully or partially
executed counterparts, each of which will be deemed an original binding the
signer thereof against the other signing parties, but all counterparts together
will constitute one and the same instrument.
(m) The parties acknowledge that the transactions described herein are
of a confidential nature and shall not be disclosed except as required by law.
No party shall make any public disclosure of the specific terms of this
Agreement, except as required by law (including SEC regulations and NYSE and
NASDAQ requirements). In connection with the negotiation of this Agreement and
the preparation for the consummation of the transactions contemplated hereby,
each party acknowledges that it will have access to confidential information
relating to the other party. Each party shall treat such information as
confidential, preserve the confidentiality thereof, and not duplicate or use
such information, except in connection with the transactions contemplated
hereby. Except as required by applicable law, neither party shall issue any
press release or make any statement to the media regarding such confidential
information without the other party's consent, which consent shall not be
unreasonably withheld.
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date and year first above written.
Equity Inns Partnership, L.P.
By: Equity Inns Trust, General Partner
By: /s/ Xxxxxx X. Silver
--------------------
Its: President
Equity Inns, Inc.
By: /s/ Xxxxxx X. Silver
--------------------
Its: President
EQI Financing Partnership I, L.P.
By: EQI Financing Corporation, General Partner
By: /s/ Xxxxxx X. Silver
--------------------
Its: President
EQI Financing Partnership II, L.P
By: EQI Financing Corporation II, General Partner
By: /s/ Xxxxxx X. Silver
-----------------
Its: President
Equity Inns/West Virginia Partnership, L.P.
By: Equity Inns Services, Inc., General Partner
By: /s/ Xxxxxx X. Silver
--------------------
Its: President
EQI/WV Financing Partnership, L.P.
By: EQI Financing Corporation II, General Partner
By: /s/ Xxxxxx X. Silver
--------------------
Its: President
Equity Inns Partnership II, L.P.
By: Equity Inns Trust, General Partner
By: /s/ Xxxxxx X. Silver
--------------------
Its: President
E.I.P. Orlando, L.P.
By: E. Inns Orlando, Inc., General Partner
By: /s/ Xxxxxx X. Silver
--------------------
Its: President
[SIGNATURES CONTINUED ON NEXT PAGE]
Interstate Hotels, LLC
By: Northridge Holdings, Inc., Managing Member
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Its: President and C.O.O.
Interstate Hotels Corporation
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Its: President and C.O.O.
Crossroads Future Company, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Its: Vice President
Crossroads/Memphis Partnership, L.P.
By: Crossroads Memphis Company, L.L.C., general
partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Its: Vice President
Crossroads Hospitality Company, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Its: President and C.O.O.
Crossroads/Memphis Financing Company, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Its: Vice President
Crossroads/Memphis Financing Company II, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Its: Vice President
Crossroads Future Financing Company, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Its: Vice President
EXHIBIT A-1
ENN ENTITIES
Equity Inns Partnership, L.P.
EQI Financing Partnership I, L.P.
EQI Financing Partnership II, L.P.
Equity Inns/West Virginia Partnership, L.P.
EQI/WV Financing Partnership, L.P.
Equity Inns Partnership II, L.P.
E.I.P. Orlando, L.P.
EXHIBIT A-2
CROSSROADS ENTITIES
Crossroads/Memphis Partnership, L.P.
Crossroads/Memphis Financing Company, L.L.C.
Crossroads/Memphis Financing Company II, L.L.C.
Crossroads Future Company, L.L.C.
Crossroads Future Financing Company, L.L.C.
EXHIBIT B-1
LIST OF LEASES
1. Consolidated Lease Amendment between Equity Inns Partnership, L.P.
and Crossroads/Memphis Partnership, L.P, dated as of November 15, 1996 (as
amended) with respect to the following Hotels:
a. Albany, NY Hampton Inn
b. Arlington South, TX Comfort Inn
c. Beckley, WV Hampton Inn
d. Bluefield, WV Holiday Inn
e. Burlington, VT Residence Inn by Marriott
f. Chattanooga, TN Hampton Inn
g. Baltimore/Glen Burnie, MD Hampton Inn
h. Oak Hill, WV Holiday Inn
x. Xxxxxxx/Trolley Square, VT Comfort Inn
j. Scottsdale-Old Town, AZ Hampton Inn
k. Scranton, PA Hampton Inn
l. State College, PA Hampton Inn
m. Wilkesboro, NC Holiday Inn Express (also known as The Inn at
Wilkesboro)
n. Hartford/Windsor Locks, CT Homewood Suites (Managed by Promus
Hotels)
2. Successor Consolidated Lease Amendment between EQI Financing
Partnership, L.P. and Crossroads/Memphis Financing Company, L.L.C., dated as of
February 6, 1997 (as amended) with respect to the following Hotels:
a. Xxx Arbor South, MI Hampton Inn
x. Xxxxxx North, TX Hampton Inn
c. College Station, TX Hampton Inn
d. Columbus Airport, GA Hampton Inn
e. Fayetteville, NC Hampton Inn
f. Fort Worth West, TX Hampton Inn
g. Gastonia, NC Hampton Inn
h. Chicago/Gurnee, IL Hampton Inn
i. Indianapolis, IN Hampton Inn
j. Jacksonville, FL Hampton Inn
k. Jacksonville Beach/Orange Park, FL Comfort Inn
l. Knoxville Airport, TN Hampton Inn
m. Louisville, XX Xxxxxxx Xxx
x. Xxxxxxx, XX Hampton Inn
o. Milford, CT Hampton Inn
p. Charleston/Mt. Pleasant, SC Holiday Inn
q. Chicago/Naperville, IL Hampton Inn
r. Omaha, NE Residence Inn by Marriott
s. Sarasota, FL Hampton Inn
x. Xxxxxxxxx/Westlake, OH Hampton Inn
x. Xxxxxxx-Salem, NC Holiday Inn (also known as The Inn at Xxxxx
Mall)
3. Consolidated Amended and Restated Lease Agreement between EQI
Financing Partnership II, L.P. and Crossroads/Memphis Financing Company II,
L.L.C., dated as of June 16, 1999 with respect to the following Hotels:
a. Detroit/Northville, MI Hampton Inn
x. Xxxxx, MN Residence Inn by Marriott
c. Phoenix/Camelback, AZ Homewood Suites
d. San Antonio, TX Homewood Suites
e. Tinton Falls, NJ Residence Inn by Marriott
4. Consolidated Amended and Restated Lease Agreement between EQI/WV
Financing Partnership, L.P. and Crossroads/Memphis Financing Company II, L.L.C.,
dated as of June 16, 1999 (Morgantown, WV Hampton Inn).
5. Consolidated Amended and Restated Lease Agreement between EQI
Financing Partnership II, L.P. and Crossroads Future Financing Company, L.L.C.,
dated as of June 16, 1999 with respect to the following Hotels:
a. Dallas/Richardson, TX Hampton Inn
b. Kansas City, MO Hampton Inn
c. Memphis/Poplar, TN Hampton Inn
d. Overland Park, KS Hampton Inn
e. Portland, OR Residence Inn by Marriott
f. Princeton, NJ Residence Inn by Marriott
g. Sharonville/Cincinnati, OH Homewood Suites
h. Tucson, AZ Residence Inn by Marriott
6. Consolidated Lease Agreement between Equity Inns Partnership, L.P.
and Crossroads Future Company, L.L.C., dated as of June 24, 1997 (as amended)
with respect to the following Hotels:
a. Dallas/Addison, TX Hampton Inn
b. Atlanta/Northlake, GA Hampton Inn
c. Aurora, CO Hampton Inn
d. Birmingham/Mt. Brook, XX Xxxxxxx Inn
e. Birmingham/Vestavia Hills, XX Xxxxxxx Inn
f. Chapel Hill, NC Hampton Inn
g. Colorado Springs North, CO Hampton Inn
h. Dublin, OH Hampton Inn
i. Madison Heights, MI Hampton Inn
j. St.Louis/Maryland Heights, MO Hampton Inn
k. Memphis/Sycamore, TN Hampton Inn
l. Nashville/Briley, TN Xxxxxxx Inn
m. Charleston, SC Xxxxxxx Xxx
x. Xxxxx Xxxxxx Xxxx, XX Hampton Inn
o. San Antonio, TX Hampton Inn
p. West Columbia, SC Hampton Inn
7. Lease Agreement between Equity Inns Partnership, L.P. and
Crossroads Future Company, L.L.C., dated January 10, 1997 (as amended).
(Colorado Springs, CO Residence Inn)
8. Lease Agreement between Equity Inns Partnership, L.P. and
Crossroads Future Company, L.L.C., dated January 10, 1997 (as amended).
(Oklahoma, City, OK Residence Inn)
9. Lease Agreement between Equity Inns Partnership, L.P. and
Crossroads Future Company, L.L.C., dated March 5, 1997 (as amended). (Norfolk,
VA Hampton Inn)
10. Lease Agreement between Equity Inns Partnership, L.P. and
Crossroads Future Company, L.L.C., dated March 11, 1997 (as amended). (Pickwick
Dam, TN Hampton Inn)
11. Lease Agreement between Equity Inns Partnership, L.P. and
Crossroads Future Company, L.L.C., dated June 25, 1997 (as amended).
(Germantown, TN Homewood Suites)
12. Lease Agreement between Equity Inns Partnership, L.P. and
Crossroads Future Company, L.L.C., dated July 10, 1997 (as amended). (Augusta,
GA Homewood Suites)
13. Lease Agreement between Equity Inns Partnership, L.P. and
Crossroads Future Company, L.L.C., dated May 1, 1998 (as amended). (Bartlett/
Wolfchase, TN Hampton Inn & Suites)
14. Lease Agreement between Equity Inns Partnership, L.P. and
Crossroads Future Company, L.L.C., dated August 7, 1998 (as amended). (Seattle,
WA Homewood Suites)
15. Lease Agreement between Equity Inns Partnership, L.P. and
Crossroads Future Company, L.L.C., dated May 22, 1999. (Chicago Downtown, IL
Homewood Suites)
16. Lease Agreement between E.I.P. Orlando, L.P. and Crossroads
Future Company, L.L.C., dated June 25, 1999. (Orlando, FL Homewood Suites)
EXHIBIT B-2
LIST OF HOTELS
1. Albany, NY Hampton Inn
2. Arlington South, TX Comfort Inn (formerly a Hampton Inn)
3. Beckley, WV Hampton Inn
4. Bluefield, WV Holiday Inn
5. Burlington, VT Residence Inn by Marriott
6. Chattanooga, TN Hampton Inn
7. Baltimore/Glen Burnie, MD Xxxxxxx Xxx
0. Xxx Xxxx, XX Holiday Inn
9. Rutland/Trolley Square, VT Comfort Inn
10. Scottsdale-Old Town, AZ Hampton Inn
11. Scranton, PA Hampton Inn
12. State College, PA Hampton Inn
13. Wilkesboro, NC Holiday Inn Express (also known as The Inn at
Wilkesboro)
14. Hartford/Windsor Locks, CT Homewood Suites (Managed by Promus
Hotels)
15. Xxx Arbor South, MI Xxxxxxx Xxx
00. Xxxxxx Xxxxx, XX Xxxxxxx Xxx
00. Xxxxxxx Xxxxxxx, XX Hampton Inn
18. Columbus Airport, GA Hampton Inn
19. Fayetteville, NC Hampton Inn
20. Fort Worth West, TX Hampton Inn
21. Gastonia, NC Hampton Inn
22. Chicago/Gurnee, IL Hampton Inn
23. Indianapolis, IN Hampton Inn
24. Jacksonville, FL Hampton Inn
25. Jacksonville Beach/Orange Park, FL Comfort Inn
26. Knoxville Airport, TN Xxxxxxx Xxx
00. Xxxxxxxxxx, XX Xxxxxxx Xxx
00. Xxxxxxx, XX Hampton Inn
29. Milford, CT Hampton Inn
30. Charleston/Mt. Pleasant, SC Holiday Inn
31. Chicago/Naperville, IL Xxxxxxx Xxx
00. Xxxxx, XX Residence Inn by Marriott
33. Sarasota, FL Hampton Inn
34. Cleveland/Westlake, OH Hampton Inn
35. Winston-Salem, NC Holiday Inn (also known as The Inn at Xxxxx Mall)
36. Detroit/Northville, MI Hampton Inn (Managed by Promus Hotels)
37. Xxxxx, MN Residence Inn by Marriott
38. Phoenix/Camelback, AZ Homewood Suites (Managed by Promus Hotels)
39. San Antonio, TX Homewood Suites (Managed by Promus Hotels)
40. Xxxxxx Xxxxx, XX Residence Inn by Marriott
41. Morgantown, WV Hampton Inn
42. Dallas/Addison, TX Hampton Inn
43. Atlanta/Northlake, GA Hampton Inn
44. Aurora, CO Hampton Inn
45. Birmingham/Mt. Brook, XX Xxxxxxx Inn
46. Birmingham/Vestavia Hills, XX Xxxxxxx Inn
47. Chapel Hill, NC Hampton Inn
48. Colorado Springs North, CO Hampton Inn
49. Dublin, OH Xxxxxxx Xxx
00. Xxxxxxx Xxxxxxx, XX Hampton Inn
51. St.Louis/Maryland Heights, MO Hampton Inn
52. Memphis/Sycamore, TN Hampton Inn
53. Nashville/Briley, TN Xxxxxxx Xxx
00. Xxxxxxxxxx, XX Xxxxxxx Xxx
00. Xxxxx Xxxxxx Xxxx, XX Hampton Inn
56. San Antonio, TX Hampton Inn
57. West Columbia, SC Hampton Inn
58. Colorado Springs, CO Xxxxxxxxx Xxx
00. Xxxxxxxx, Xxxx, XX Xxxxxxxxx Xxx
00. Xxxxxxx, XX Hampton Inn
61. Pickwick Dam, TN Hampton Inn
62. Germantown, TN Homewood
63. Augusta, GA Homewood Suites
64. Bartlett/Wolfchase, TN Xxxxxxx Xxx & Xxxxxx
00. Xxxxxxx, XX Homewood Suites
66. Chicago Xxxxxxxx Xxxxxxxx Xxxxxx
00. Xxxxxxx, XX Homewood Suites
68. Dallas/Richardson, TX Xxxxxxx Xxx
00. Xxxxxx Xxxx, XX Hampton Inn
70. Memphis/Poplar, TN Hampton Inn
71. Overland Park, KS Hampton Inn
72. Portland, OR Residence Inn by Marriott
73. Princeton, NJ Residence Inn by Marriott
74. Sharonville/Cincinnati, OH Homewood Suites
75. Tucson, AZ Residence Inn by Marriott
EXHIBIT C
EXCLUDED HOTELS
Birmingham (Mt. Brook), XX Xxxxxxx Inn
Birmingham (Vestavia), XX Xxxxxxx Inn
Chattanooga, TN Hampton Inn
Knoxville, TN Hampton Inn
Memphis (Germantown), TN Homewood Suites
Memphis (Poplar), TN Hampton Inn
Memphis (Sycamore), TN Hampton Inn
Memphis (Bartlett/Wolfchase), TN Hampton Inn & Suites
Nashville (Briley), TN Xxxxxxx Inn
Pickwick Dam, TN Hampton Inn
Dallas (Addison), TX Hampton Inn
Dallas (Arlington), TX Comfort Inn
Dallas (Richardson), TX Xxxxxxx Inn
Ft. Worth, TX Hampton Inn
Charleston/Mt. Pleasant, SC Holiday Inn
Sarasota, FL Hampton Inn
Chicago/Gurnee, IL Hampton Inn
San Antonio, TX Homewood Suites
Phoenix/Camelback, AZ Homewood Suites
Detroit/Northville, MI Hampton Inn
Hartford/Windsor Locks, CT Homewood Suites
EXHIBIT D
LIST OF FRANCHISE AGREEMENTS
1. Birmingham (Mt. Brook), XX Xxxxxxx Inn -- License Agreement dated
August 1, 1997; Letter Agreement dated June 23, 1997; Comfort Letter dated June
24, 1997; Consent Letter dated September 16, 1999 and Guaranty.
2. Birmingham-South/Vestavia Hills, XX Xxxxxxx Inn -- License Agreement
dated June 24, 1997; Letter Agreement dated June 23, 1997; Comfort Letter dated
June 24, 1997; Consent Letter dated September 16, 1999 and Guaranty.
3. North Little Rock, AR Hampton Inn -- License Agreement dated June
24,; Letter Agreement dated June 23, 1997; Comfort Letter dated June 24, 1997;
Consent Letter dated September 16, 1999 and Guaranty.
4. Scottsdale-Old Town, AZ Hampton Inn -- License Agreement dated
November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
5. Tucson, AZ Residence Inn -- Franchise Agreement dated June 16, 1999;
Amendment No. 1 to Franchise Agreement dated June 16, 1999; Owner Agreement
dated June 16, 1999.
6. Colorado Springs I-25 North, CO Hampton Inn -- License Agreement
dated June 24, 1997; Letter Agreement dated June 23, 1997; Comfort Letter dated
June 24, 1997; Consent Letter dated September 16, 1999 and Guaranty.
7. Colorado Springs, CO Residence Inn -- Franchise Agreement dated
January 10, 1997; Owner Agreement dated January 10, 1997; Comfort Letters dated
April 11, 1997.
8. Denver/Aurora, CO Hampton Inn -- License Agreement dated June 24,
1997; Letter Agreement dated June 23, 1997; Comfort Letter dated June 24, 1997;
Consent Letter dated September 16, 1999 and Guaranty.
9. Meriden, CT Hampton Inn -- License Agreement dated November 5,
1996; Consent Letter dated September 16, 1999 and Guaranty.
10. Milford, CT Hampton Inn -- License Agreement dated November 5,
1996; Consent Letter dated September 16, 1999 and Guaranty.
11. Jacksonville Beach, FL Comfort Inn - Franchise Agreement, dated
November 21, 1995; Assignment and Assumption Agreement dated as of November 14,
1996; Assignment and Xxxx of Sale dated November 15, 1996; Exhibit C to
Assignment and Assumption Agreement, dated February 6, 1997.
12. Jacksonville-Orange Park, FL Hampton Inn -- License Agreement dated
November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
13. Orlando-Convention Center, FL Homewood Suites -- License Agreement
dated May 25, 1999.
14. Sarasota, FL Hampton Inn -- License Agreement dated November 5,
1996,; Consent Letter dated September 16, 1999 and Guaranty.
15. Atlanta-Northlake, GA Hampton Inn -- License Agreement dated June
24, 1997; Letter Agreement dated June 23, 1997; Comfort Letter dated June 24,
1997; Consent Letter dated September 16, 1999 and Guaranty.
16. Augusta, GA Homewood Suites -- License Agreement dated July 11,
1997; Consent Letter dated September 16, 1999 and Guaranty.
17. Columbus-Airport, GA Hampton Inn -- License Agreement dated
November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
18. Chicago-Downtown, IL Homewood Suites -- License Agreement dated
May 22, 1999.
19. Chicago/Gurnee, IL Hampton Inn -- License Agreement dated November
5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
20. Chicago/Naperville, IL Hampton Inn -- License Agreement dated
November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
21. Indianapolis NE/Castleton, IN Hampton Inn -- License Agreement
dated November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
22. Overland Park, KS Hampton Inn -- License Agreement dated June 15,
1999 and Guaranty.
23. Louisville, XX Xxxxxxx Inn -- License Agreement dated November 5,
1996; Consent Letter dated September 16, 1999 and Guaranty.
24. Baltimore/Glen Burnie, MD Hampton Inn -- License Agreement dated
November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
25. Xxx Arbor-South, MI Hampton Inn -- License Agreement dated November
5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
26. Madison Heights, MI Hampton Inn -- License Agreement dated June 24,
1997; Letter Agreement dated June 23, 1997; Comfort Letter dated June 24, 1997.
Consent Letter dated September 16, 1999 and Guaranty.
27. Minneapolis (Xxxxx), MN Residence Inn - -Franchise Agreement dated
June 16, 1999; Amendment No. 1 to Franchise Agreement dated June 16, 1999; Owner
Agreement dated June 16, 1999 and Guaranty.
28. Kansas City, MO Hampton Inn -- License Agreement dated June 15,
1999 and Guaranty.
29. St. Louis-Westport, MO Hampton Inn -- License Agreement dated June
24, 1997; Letter Agreement dated June 23, 1997; Comfort Letter dated June 24,
1997; Consent Letter dated September 16, 1999 and Guaranty.
30. Chapel Hill, NC Hampton Inn -- License Agreement dated June 24,
1997; Letter Agreement dated June 23, 1997; Comfort Letter dated June 24, 1997;
Consent Letter dated September 16, 1999 and Guaranty.
31. Fayetteville I-95, NC Hampton Inn -- License Agreement dated
November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
32. Gastonia, NC Hampton Inn License Agreement dated November 5, 1996;
Consent Letter dated September 16, 1999 and Guaranty.
33. Winston-Salem, NC Holiday Inn -- Change of Ownership License
Agreement dated July 15, 1998; Master Technology Agreement dated July 15, 1998;
and Voluntary Termination Agreement dated July 15, 1998.
34. Wilkesboro, NC Holiday Inn -- Conversion License Agreement dated
September 1999 and Guaranty; Transmittal letter dated December 13, 1999.
35. Omaha, NE Residence Inn -- Franchise Agreement dated December 15,
1995; Owner Agreement dated November 22, 1995; Letter re: Effective Date dated
December 18, 1995; Assignment, Assumption and Amendment Agreement dated November
14, 1996.
36. Princeton, NJ Residence Inn -- Franchise Agreement dated June 16,
1999; Amendment No. 1 to Franchise Agreement dated June 16, 1999; Owner
Agreement dated June 16, 1999.
37. Xxxxxx Xxxxx, XX Residence Inn -- Franchise Agreement dated June
16, 1999; Amendment No. 1 to Franchise Agreement dated June 16, 1999; Owner
Agreement dated June 16, 1999.
38. Albany-Wolf Road, NY Hampton Inn -- License Agreement dated
November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
39. Cincinnati (Sharonville), OH Homewood Suites -- License Agreement
dated June 15, 1999 and Guaranty.
40. Cleveland/Westlake, OH Hampton Inn - License Agreement, dated
November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
41. Dublin, OH Hampton Inn -- License Agreement dated June 24, 1997;
Letter Agreement dated June 23, 1997; Comfort Letter dated June 24, 1997;
Consent Letter dated September 16, 1999 and Guaranty.
42. Oklahoma City, OK Residence Inn -- Franchise Agreement dated
January 10, 1997; Owner Agreement dated January 10, 1997; Comfort Letter from
First National Bank of Chicago dated April 11, 1997 (and related side letter).
43. Portland/Xxxxx Center, OR Residence Inn -- Franchise Agreement
dated June 16, 1999; Amendment No. 1 to Franchise Agreement dated June 16, 1999;
Owner Agreement dated June 16, 1999.
44. Scranton, PA Hampton Inn -- License Agreement dated November 5,
1996; Consent Letter dated September 16, 1999 and Guaranty.
45. State College, PA Hampton Inn -- License Agreement dated November
5, 1996; Amendment Letter dated February 10, 1998; Consent Letter dated
September 16, 1999 and Guaranty.
46. Charleston-Airport, SC Hampton Inn -- License Agreement dated June
24, 1997; Letter Agreement dated June 23, 1997; Comfort Letter dated June 24,
1997; Consent Letter dated September 16, 1999 and Guaranty.
47. West Columbia, SC Hampton Inn -- License Agreement dated June 24;
Letter Agreement dated June 23, 1997; Comfort Letter dated June 24, 1997;
1997Consent Letter dated September 16, 1999 and Guaranty.
48. Charleston/Mt. Pleasant, SC Holiday Inn -- Change of Ownership
Agreement dated July 15, 1998; Master Technology Agreement dated July 15, 1998.
49. Chattanooga, TN Hampton Inn -- License Agreement dated November 1,
1996; Consent Letter dated September 16, 1999 and Guaranty.
50. Knoxville-Airport, TN Hampton Inn -- License Agreement dated
November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
51. Memphis-Poplar, TN Hampton Inn -- License Agreement dated June 15,
1999 and Guaranty.
52. Memphis-I-40 East-Sycamore, TN Hampton Inn -- License Agreement
dated June 24, 1997; Letter Agreement dated June 23, 1997; Comfort Letter dated
June 24, 1997; Consent Letter dated September 16, 1999 and Guaranty.
53. Bartlett/Memphis-Wolfchase Galleria, TN Hampton Inn & Suites --
License Agreement dated November 5, 1996; Consent Letter dated September 16,
1999 and Guaranty.
54. Germantown, TN Homewood Suites -- License Agreement dated June 25,
1997; Consent Letter dated September 16, 1999 and Guaranty.
55. Nashville (Xxxxxx Parkway), TN Hampton Inn -- License Agreement
dated June 24, 1997; Letter Agreement dated June 23, 1997; Comfort Letter dated
June 24, 1997; Consent Letter dated September 16, 1999 and Guaranty.
56. Pickwick Dam, TN Hampton Inn -- License Agreement dated March 11,
1997; Comfort Letter dated August 26, 1997; Consent Letter dated September 16,
1999 and Guaranty.
57. Arlington, TX Comfort Inn -- Franchise Agreement dated June 30,
1999 and effective July 8, 1999; and Addendum No. 1 dated June 30, 1999.
58. Austin-North, TX Hampton Inn -- License Agreement dated November 5,
1996; Consent Letter dated September 16, 1999 and Guaranty.
59. College Station, TX Hampton Inn -- License Agreement dated November
5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
60. Dallas-Richardson, TX Hampton Inn -- License Agreement dated June
15, 1999 and Guaranty.
61. Ft. Worth-West, TX Hampton Inn -- License Agreement dated November
5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
62. North Dallas/Addison, TX Hampton Inn -- License Agreement dated
June 24, 1997; Letter Agreement dated June 23, 1997; Comfort Letter dated June
24, 1997; Consent Letter dated September 16, 1999 and Guaranty.
63. San Antonio-Downtown, TX Hampton Inn -- License Agreement dated
April 14, 1998; Consent Letter dated September 16, 1999 and Guaranty.
64. Norfolk-Naval Base, VA Hampton Inn -- License Agreement dated March
5, 1997; Consent Letter dated September 16, 1999 and Guaranty.
65. Burlington, VT Residence Inn - Assumption Agreement dated November
14, 1996; Owner's Agreement dated November 15, 1996.
66. Rutland/Trolley Square, VT, Comfort Inn -- Franchise Agreement,
dated July 27, 1995; Assumption Agreement dated August ___, 2000.
67. Seattle-Downtown, WA Homewood Suites -- License Agreement dated
August 7, 1998; Consent Letter dated September 16, 1999 and Guaranty.
68. Beckley, WV Hampton Inn -- License Agreement dated November 5,
1996; Consent Letter dated September 16, 1999 and Guaranty.
69. Bluefield, WV Holiday Inn -- Change of Ownership License Agreement
dated July 15, 1998; Master Technology Agreement dated July 15, 1998; Extension
of Termination Date letter dated March 3, 1999.
70. Morgantown, WV Hampton Inn -- License Agreement dated June 15, 1999
and Guaranty.
71. Oak Hill, WV Holiday Inn -- Change of Ownership Agreement dated
July 15, 1998;
Master Technology Agreement dated July 15, 1998; Transactions Transmittal
Agreement dated July 15, 1998; Third Party Site License Agreement (Encore
Systems) dated August 11, 1998.
72. Phoenix/Camelback, AZ Homewood Suites -- License Agreement dated
June 15, 1999 and Guaranty.
73. San Antonio, TX Homewood Suites -- License Agreement dated June
15, 1999 and Guaranty.
74. Detroit/Northville Hampton Inn -- License Agreement dated June 15,
1999 and Guaranty.
75. Hartford/Windsor Locks, CT Homewood Suites -- License Agreement
dated November 5, 1996; Consent Letter dated September 16, 1999 and Guaranty.
EXHIBIT E
FORM OF MANAGEMENT AGREEMENT
EXHIBIT F
NECESSARY CONSENTS
1. Consents pursuant to the EQI Financing Partnership I, L.P. $88,000,000
Series 1997-1 Commercial Mortgage Bond financing with respect to the following
Hotels:
a. Xxx Arbor South, MI Hampton Inn
x. Xxxxxx North, TX Hampton Inn
c. College Station, TX Hampton Inn
d. Columbus Airport, GA Hampton Inn
e. Fayetteville, NC Hampton Inn
f. Fort Worth West, TX Hampton Inn
g. Gastonia, NC Hampton Inn
h. Chicago/Gurnee, IL Hampton Inn
i. Indianapolis, IN Hampton Inn
j. Jacksonville, FL Hampton Inn
k. Jacksonville Beach/Orange Park, FL Comfort Inn
l. Knoxville Airport, TN Hampton Inn
m. Louisville, XX Xxxxxxx Xxx
x. Xxxxxxx, XX Hampton Inn
o. Milford, CT Hampton Inn
p. Charleston/Mt. Pleasant, SC Holiday Inn
q. Chicago/Naperville, IL Hampton Inn
r. Omaha, NE Residence Inn by Marriott
s. Sarasota, FL Hampton Inn
x. Xxxxxxxxx/Westlake, OH Hampton Inn
x. Xxxxxxx-Salem, NC Holiday Inn (also known as The Inn at Xxxxx
Mall)
2. Consent pursuant to the GMAC Term Loan with respect to the following
Hotels:
a. Detroit/Northville, MI Hampton Inn
x. Xxxxx, MN Residence Inn by Marriott
c. Phoenix/Camelback, AZ Homewood Suites
d. San Antonio, TX Homewood Suites
e. Tinton Falls, NJ Residence Inn by Marriott
f. Morgantown, WV Hampton Inn
g. Dallas/Richardson, TX Hampton Inn
h. Kansas City, MO Hampton Inn
i. Memphis/Poplar, TN Hampton Inn
j. Overland Park, KS Hampton Inn
k. Portland, OR Residence Inn by Marriott
l. Princeton, NJ Residence Inn by Marriott
m. Sharonville/Cincinnati, OH Homewood Suites
n. Tucson, AZ Residence Inn by Marriott
3. Consent pursuant to the ENN Entities proposed financing with General
Electric Credit Corporation with respect to the following Hotels:
a. Albany, NY Hampton Inn
b. Beckley, WV Hampton Inn
c. State College, PA Hampton Inn
x. Xxxxxxx/Trolley Square, VT Comfort Inn
e. Scranton, PA Hampton Inn
f. Baltimore/Glen Burnie, MD Hampton Inn
g. Hartford/Windsor Locks, CT Homewood Suites
h. Chattanooga, TN Hampton Inn
i. Oklahoma City, OK Residence Inn by Marriott
j. Norfolk, VA Hampton Inn
k. Birmingham- Mt. Brook, XX Xxxxxxx Inn
l. Charleston, SC Hampton Inn
m. Aurora, CO Hampton Inn
n. Madison Heights, MI Hampton Inn
o. Dublin, OH Hampton Inn
p. Nashville-Xxxxxx Parkway, TN Hampton Inn
q. St. Louis Westport, MO Hampton Inn
r. Germantown, TN Homewood Suites
4. Any required consents under mortgage notes with respect to the Residence
Inn, Boise, Idaho and Hampton Inn, San Antonio, Texas
5. Consents of lenders pursuant to the ENN Entities lines of credit with
respect to the following hotels:
a. Arlington, TX Comfort Inn
b. Bluefield, WV Holiday Inn
c. Oak Hill, WV Holiday Inn
d. Wilkesboro, NC Holiday Inn (aka The Inn at Wilkesboro)
e. Scottsdale, AZ Hampton Inn
f. Burlington, VT Residence Inn by Marriott
g. Colorado Springs, CO Residence Inn by Marriott
h. Pickwick Dam, TN Hampton Inn
i. Dallas/Addison, TX Hampton Inn
j. Atlanta-Northlake, GA Hampton Inn
k. Birmingham-Vestavia Hills, GA Hampton Inn
l. Chapel Hill, NC Hampton Inn
m. Colorado Springs, CO Hampton Inn
n. Columbia, SC Hampton Inn
o. Little Rock, AR Hampton Inn
p. Memphis-Sycamore, TN Hampton Inn
q. Augusta, GA Homewood Suites
r. Bartlett, TN Xxxxxxx Xxx & Xxxxxx
x. Xxxxxxx, XX Homewood Suites
t. Chicago, IL Homewood Suites
u. Orlando, FL Homewood Suites
6. Consents of franchisors of the Hotels
7. Consents of ground lessors with respect to the following Hotels:
a. Nashville-Xxxxxx Parkway, TN Hampton Inn
b. Atlanta-Northlake, GA Hampton Inn
c. Memphis-Sycamore, TN Hampton Inn
d. Birmingham-Mt.Brook, XX Xxxxxxx Inn
e. Baltimore/Glen Burnie, MD Hampton Inn
f. Norfolk, VA Hampton Inn
g. Phoenix/Camelback, AZ Homewood Suites
h. Xxxxxx Xxxxx, XX Residence Inn by Marriott
8. The following consents shall be required in connection with the
transactions described in this Agreement but shall not be deemed Necessary
Consents:
(a) Consents to transfers of liquor licenses and other operating
permits and licenses; and
(b) Any other consents which are disclosed by the ENN Entities to the
Crossroads Entities.
EXHIBIT G
CERTIFICATE OF TERMINATION, ASSIGNMENT AND CONTINUATION
The undersigned are parties to that certain Master Lease
Termination Agreement dated as of September ____, 2000 (the "Agreement").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed in the Agreement.
The undersigned, hereby certify as follows:
1. that the Leases listed on Exhibit A, attached hereto
and incorporated herein, have been terminated in accordance with Section 3(b) of
the Agreement, effective as of 12:01 a.m. on January 1, 2001;
2. that the Leases listed on Exhibit B, attached hereto
and incorporated herein, have been assigned by the Lessees thereunder pursuant
to and in accordance with Section 3(d) of the Agreement, effective as of 12:01
a.m. on January 1, 2001; and
3. that Lease Amendments for each of the Leases listed on
Exhibit C, attached hereto and incorporated herein, have been executed in
accordance with Section 5 of the Agreement and that each of such Lease shall
remain in full force and effect after 12:01 on January 1, 2001.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate as of the ____ day of December, 2000 and effective as of the _____
day of January, 2001.
ENN Entities
Crossroads Entities
EXHIBIT G-1
MEMORANDUM OF LEASE TERMINATION
[To be prepared in Recordable Form]
This Memorandum of Lease Termination is made as of the 1st day
of January, 2001 between ___________________ (the "Lessor") and
_____________________ (the "Lessee").
Lessor and Lessee entered into that certain Lease Agreement
dated as of _____________ (together with any and all amendments and
modifications thereto, the "Lease"), a memorandum of which was recorded in the
__________________ on _______________ [as Document Number ________] [in Book
______ at Page ________] pursuant to which Lessor leased the property legally
described on Exhibit A attached hereto and made a part hereof (the "Property")
to Lessee.
Lessor and Lessee have terminated the Lease effective as of
the date hereof and by this Memorandum of Lease Termination Lessee releases any
and all right, title, and interest, if any, it has or may have in the Property
pursuant to the Lease.
IN WITNESS WHEREOF, Lessor and Lessee have executed this
Memorandum of Lease Termination as of the date and year first above written.
[Lessor]
[Lessee]
EXHIBIT G-2
FORM OF ASSIGNMENT OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (the "Assignment")
dated as of ________________, 200__, is between , a ("Assignor"), and
____________________, a(n) _________________ ("Assignee").
RECITALS
A. Assignor is the tenant under certain leases executed with respect
to that certain real property and improvements thereon known as
____________________, _____________, ________ (the "Property"), which leases are
described in Schedule 1 attached hereto (the "Leases").
B. At the request and direction of (the "Landlord"),
_______________________ Assignor desires to assign its interest as tenant in the
Leases to Assignee, and Assignee desires to accept the assignment thereof, on
the terms and conditions below.
ACCORDINGLY, the parties hereby agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title, and
interest in and to the Leases, and Assignee hereby accepts such assignment and
assumes all of the lessor's obligations under the Leases which arise after the
date hereof.
2. Assignee agrees to indemnify Assignor and hold Assignor harmless
from and against any and all claims, liens, damages, demands, causes of action,
liabilities, lawsuits, judgments, losses, costs and expenses (including but not
limited to attorneys' fees and expenses) asserted against or incurred by
Assignor by reason of or arising out of any failure by Assignee to perform or
observe the obligations, covenants, terms and conditions assumed by Assignee
hereunder.
3. In the event of any dispute between Assignor and Assignee arising
out of the obligations of the parties under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the sole prevailing party's costs and expenses of such dispute,
including, without limitation, reasonable attorneys' fees and costs.
4. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
5. This Assignment shall be governed and construed in
accordance with the laws of the State of ___________.
6. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment the day and year first above written.
ASSIGNOR:
----------------------------------------------------,
a Delaware
------------------------------------------
By:
---------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
ASSIGNEE:
----------------------------------------------------,
a(n)
------------------------------------------------
By:
---------------------------------------------
Name:
---------------------------------------------
Title:
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CONSENT OF AND RELEASE BY LANDLORD
1. Pursuant to Article XXIII of the Lease, Landlord hereby consents to
this Assignment and, except to the extent provided in Paragraph 2 below, upon
Assignor's surrender of the Hotel, Assignor and its parent companies, partners,
members, affiliates, subsidiaries, directors, officers, successors and assigns,
agents, employees, and representatives shall be unconditionally and fully
released and discharged from any and all obligations, claims, actions,
liability, of whatever kind or character, known or unknown, by reason of,
growing out of, arising out of or existing in connection with the Hotel, or by
reason of the breach or alleged breach by Assignor, or conduct or activity
resulting in the breach or alleged breach by Assignor, of any of the terms or
provisions of the Lease arising after the date hereof, other than obligations,
claims, actions, or liabilities based on any breach or alleged breach of the
Lease occurring prior to the date hereof.
2. Landlord and its parent companies, partners, members, affiliates,
subsidiaries, directors, officers, successors and assigns, agents, employees,
and representatives are hereby unconditionally and fully released and discharged
by Assignor from any and all obligations, claims, actions, liability, of
whatever kind or character, known or unknown, by reason of, growing out of,
arising out of or existing in connection with the breach or alleged breach by
Landlord, or conduct or activity resulting in the breach or alleged breach by
Landlord, of any of the terms or provisions of the Lease arising after the date
hereof, other than obligations, claims, actions, or liabilities based on any
breach of alleged breach of the Lease occurring prior to the date hereof.
3. Notwithstanding anything to the contrary contained in this
Assignment Agreement, Assignor shall remain liable for all obligations and
liabilities under the Lease which pursuant to the terms of the Lease survive the
termination of the Lease.
LANDLORD:
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a(n)
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By:
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Name:
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Title:
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EXHIBIT H-1
TENANT LEASES
EXHIBIT H-2
FORM OF ASSIGNMENT OF TENANT LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (the "Assignment")
dated as of ________________, 200__, is between , a ("Assignor"), and
____________________, a(n) _________________ ("Assignee").
RECITALS
C. Assignor is the lessor under certain leases executed with respect
to that certain real property and improvements thereon known as
____________________, _____________, ________ (the "Property"), which leases are
described in Schedule 1 attached hereto (the "Leases").
D. Assignor desires to assign its interest as lessor in the Leases to
Assignee, and Assignee desires to accept the assignment thereof, on the terms
and conditions below.
ACCORDINGLY, the parties hereby agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title, and
interest in and to the Leases, and Assignee hereby accepts such assignment and
assumes all of the lessor's obligations under the Leases arising before or after
the date hereof.
2. Assignee agrees to indemnify Assignor and hold Assignor harmless
from and against any and all claims, liens, damages, demands, causes of action,
liabilities, lawsuits, judgments, losses, costs and expenses (including but not
limited to attorneys' fees and expenses) asserted against or incurred by
Assignor by reason of or arising out of any failure by Assignee to perform or
observe the obligations, covenants, terms and conditions assumed by Assignee
hereunder.
3. In the event of any dispute between Assignor and Assignee arising
out of the obligations of the parties under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the sole prevailing party's costs and expenses of such dispute,
including, without limitation, reasonable attorneys' fees and costs.
4. This Assignment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
5. This Assignment shall be governed and construed in accordance with
the laws of the State of ___________.
6. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment the day and year first above written.
ASSIGNOR:
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a
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By:
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Name:
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Title:
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ASSIGNEE:
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a(n)
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By:
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Name:
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Title:
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EXHIBIT I-1
HOTEL CONTRACTS
EXHIBIT I-2
FORM OF ASSIGNMENT
THIS ASSIGNMENT AND ASSUMPTION (the "Assignment") dated as of
__________________, 2000, is between ASP , a Delaware ("Assignor"), and
____________________, a(n) _________________ ("Assignee").
RECITALS
A. Assignor is the Lessor of certain real property and
certain improvements thereon known as __________________, __________, _________
(the "Property"). Assignee is the owner [ground lessor] of the Property.
B. Assignor has entered into certain contracts which are more
particularly described in Schedule l attached hereto (the "Hotel Contracts"),
which affect the Property.
C. Assignor and Assignee together with others are parties to that
certain Master Lease Termination Agreement dated as of June ____, 2000 (the
"Agreement") pursuant to which and among other things, Assignor and Assignee
agreed to terminate or assign the lease between Assignor and Assignee for the
Property.
D. Assignor desires to assign to Assignee its interest, if any, and to
the extent assignable, in (a) the Hotel Contracts, (b) the Bookings (as defined
in the Agreement) and the (c) the Permits (as defined in the Agreement) and
Assignee desires to accept the assignment thereof, on the terms and conditions
below.
ACCORDINGLY, the parties hereby agree as follows:
1. Assignor hereby assigns to Assignee all of Assignor's
right, title, and interest, if any, in and to the following, from and after the
date hereof, to the extent the same are assignable: (a) the Hotel Contracts, (b)
the Bookings, and (c) the Permits.
2. Assignee hereby accepts the foregoing assignment by Assignor and
assumes all of the Assignor's obligations under the Hotel Contracts, the
Bookings, and the Permits arising after the date hereof.
3. Assignee agrees to indemnify Assignor and hold Assignor harmless
from and against any and all claims, liens, damages, demands, causes of action,
liabilities, lawsuits, judgments, losses, costs and expenses (including but not
limited to attorneys' fees and expenses) asserted against or incurred by
Assignor by reason of or arising out of any failure by Assignee to perform or
observe the obligations, covenants, terms and conditions assumed by Assignee
hereunder.
4. In the event of any dispute between Assignor and Assignee arising
out of the obligations of the parties under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the sole prevailing party's costs and expenses of such dispute,
including, without limitation, reasonable attorneys' fees and costs.
5. This Assignment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
6. This Assignment shall be governed and construed in accordance with
the laws of the State of _______.
7. This Assignment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Agreement the day and year first above written.
ASSIGNOR:
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a Delaware
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By:
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Name:
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Title:
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ASSIGNEE:
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a(n)
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By:
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Name:
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Title:
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EXHIBIT J
FORM OF TERMINATION OF GUARANTIES
THIS TERMINATION, dated as of this ____ day of ________,
200__, is made by Equity Inns Partnership, L.P. ("EIP") in favor of Interstate
Hotels Corporation, a Maryland corporation, Interstate Hotels, LLC, a Delaware
limited liability company, and Patriot American Hospitality, Inc. (individually
a "Guarantor" and collectively, the "Guarantors").
WITNESSETH:
WHEREAS, each of the Guarantors has executed and delivered for
the benefit of EIP each of the Guaranties described on Exhibit A attached hereto
and made a part hereof (the "Guaranties"); and
WHEREAS, the Guaranties each provide that the applicable
Guarantor will guaranty certain obligations of the lessee under and pursuant to
the Leases described on Exhibit B attached hereto and made a part hereof (the
"Leases"); and
WHEREAS, the lessors and the lessees under the Leases are
either terminating the Leases or amending the Leases and EIP no longer requires
the Guaranties.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, EIP agrees to terminate forever the Guaranties as of the
date hereof and does hereby release, relieve and discharge each of the
Guarantors from any and all liability at any time arising thereunder; provided,
however, nothing contained in this Termination shall relieve or discharge any of
the Guarantors with respect to any obligations under the Guaranties that arose
prior to the date hereof.
Equity Inns Partnership, L.P.
By: Equity Inns Trust, General Partner
By: ___________________________________
Its: __________________________________
EXHIBIT K-1
LINEN INVENTORY STANDARDS
2.5 par for all Hotels at the quality levels required by the franchisor
pursuant to the Franchise Agreement
EXHIBIT K-2
SIGNIFICANT SUPPLIES INVENTORY STANDARDS
Iron/Ironing Boards
Standard: As required by the franchisor pursuant to the Franchise
Agreement
Coffee Makers
Standard: As required by the franchisor pursuant to the Franchise
Agreement
Kitchen Supplies: (In the guest rooms for the Extended Stay Hotels only)
Standard: As required by the franchisor pursuant to the Franchise
Agreement
Other Operational Supplies:
Standard: As required by the franchisor pursuant to the Franchise
Agreement or, if a franchisor minimum requirement does not
exist, at levels consistent with CHC's past practices
